DOJ Has at Least One Card Left to Play: Congress’ Instinct for Self-Preservation

Last night, Trump and DOJ submitted their competing plans for a Special Master to Judge Aileen Cannon. As I laid out, Trump’s plan is a transparent effort to stall the entire investigation for at least three months, and after that to bottle up documents he stole — those with classified markings and those without — at NARA, where he’ll launch new legal fights in DC to prevent further access.

Judge Cannon has ordered Trump to weigh in on the government’s motion for a partial stay of her order, asking her to permit the investigative team access to any documents marked as classified, by 10AM on Monday. Trump will object for the same insane logic he gave in his Special Master proposal: That if he can get a private citizen Special Master to override the government’s classification determination, then he can declare the documents — even Agency documents that would be government, not Presidential Records — part of his own records at NARA.

Because Trump didn’t share his choices until after close of business day on Friday, both sides also have to inform her what they think of the other’s Special Master suggestions — Barbara Jones (who was Special Master for the review of both Rudy Giuliani’s and Michael Cohen’s devices) and retired George W. Bush appellate judge Thomas Griffith for the government, and retired EDNY and FISC judge Raymond Dearie and GOP partisan lawyer Paul Huck Jr for Trump — on Monday.

Then, if Cannon has not relented on the investigative side for documents marked as classified by Thursday, DOJ will ask for a stay of that part of her decision from the 11th Circuit, pending the rest of their appeal (the scope of which remains unknown and may depend on her other decisions this week).

Cannon’s decision on whether to permit investigators to access the documents marked as classified may provide the government leverage over the Special Master choice, which could create new bases for appeal. None of the choices for Special Master are known to be cleared, much less at the TS/SCI levels that would be needed to review the documents Trump stole, though Dearie, who was on FISC as recently as 2019, surely would be easily cleared as such.

That doesn’t matter for the government’s preferred approach. The Special Master won’t get any known classified document under their approach.

They would, however, under Trump’s approach (which more closely matches Cannon’s current order). And so DOJ will have to agree to give clearance to whatever person ends up as Special Master under the Trump plan.

The same Supreme Court precedent that undergirds all these arguments about classification authority, Navy v. Egan, is specifically a ruling about the Executive’s authority to grant or deny clearances. The government could deny any of the proposed Special Masters clearance — and might well do so, to deny Huck access. Likewise, the government might well deny Trump’s lawyers (at least Evan Corcoran, who is likely either a witness or subject of the obstruction side of the investigation) clearance for such a review as well.

So if Cannon doesn’t grant the government’s motion for a stay, then she effectively gives the government several more levers over her control of the Special Master process.

She probably doesn’t give a damn.

There are two other developments we might expect this week, though.

First, last Wednesday, DOJ asked and Chief Judge Beryl Howell granted permission to unseal the parts of the search warrant affidavit mentioning the same two grand jury subpoenas that she unsealed for mention in DOJ’s response to Trump’s Special Master motion. (I’m looking for the person I owe a hat-tip to this for.) Since receiving that permission, DOJ has not yet gone back to Magistrate Judge Bruce Reinhart to request further unsealing of the affidavit; there’s not even the tell-tale sealed filings in the docket that ended up being prior such requests.

If and when DOJ does ask for further unsealing, it might reveal more information about Trump’s actions — and, importantly for the question of who can be cleared for the Special Master review, Evan Corcoran’s. There are several entirely redacted paragraphs that likely tell what happened in response to the May 11 subpoena. There’s also a likely detailed discussion of the probable cause that Trump — and others — obstructed the investigation, some of which could be unsealed with mention of the surveillance video.

The government response before Cannon didn’t address the evidence of obstruction (or the June 24 subpoena) in much detail. Simply unsealing references of that subpoena in the affidavit might provide more damning information about Trump’s efforts to hide classified documents from DOJ.

More importantly, on Tuesday, the House returns from August recess. It’ll be the first time since the search that both houses of Congress are in town. And in their Motion for a Stay, the government noted (and Judge Cannon did not object) that it did not understand Cannon’s order to prohibit a briefing to “Congressional leaders with intelligence oversight responsibilities.”

5 The government also does not understand the Court’s Order to bar DOJ, FBI, and ODNI from briefing Congressional leaders with intelligence oversight responsibilities regarding the classified records that were recovered. The government similarly does not understand the Order to restrict senior DOJ and FBI officials, who have supervisory responsibilities regarding the criminal investigation, from reviewing those records in preparation for such a briefing.

This seems to telegraph that DOJ plans to brief the Gang of Eight — which includes Nancy Pelosi, Adam Schiff, Kevin McCarthy, Mike Turner, Chuck Schumer, Mark Warner, Mitch McConnell, and Marco Rubio — about what documents Trump stole, possibly this week. Turner and to a lesser degree Rubio have been demanding such a briefing.

And at a minimum, after such a briefing you’d see everyone run to the press and express their opinions about the gravity of Trump’s actions. Because neither DOJ nor Aileen Cannon can prevent these members of Congress from sharing details about these briefings (especially if they’re not classified), you should be unsurprised everyone to provide details of what Trump stole.

That might devolve into a matter of partisan bickering. But two things might moderate such bickering. First, Marco Rubio is on the ballot in November, and Val Demings has already criticized his knee-jerk defense of Trump.

Just as importantly, Mitch McConnell, who badly would like to prevent Democrats from expanding their majority in the Senate and just as badly would like the MAGA Republicans to go away, really doesn’t want to spend the next two months dodging questions about Trump’s crimes.

If not for Trump’s demand for a Special Master, DOJ likely would have put its head down and mentioned nothing of this investigation until after the election. But by demanding one — and by making such unreasonable requests — Trump has ensured that the investigation into his suspected violations of the Espionage Act and obstruction will dominate the news for at least a few more weeks.

Even if DOJ doesn’t brief the Gang of Eight, even if that doesn’t lead to damning new details and recriminations from being made public, the public nature of the Special Master fight will suck all the oxygen out of the next few weeks of campaign season, at least, just as it contributed to Joe Biden enjoying one of the most positive mid-term Augusts for any President in the last half-century.

But if new specifics about Trump’s negligence and efforts to obstruct the investigation are made public, then November’s election will be precisely what Republicans are trying to avoid it being: not just a response to the Dobbs ruling overturning protection for abortion access, but a referendum on the way Republicans have sacrificed American security in their fealty to Donald Trump.

86 replies
  1. Scott Rose says:

    If national security were not at risk, Cannon’s flawed decision could be written off as merely flawed. However, not only is national security at risk, but Cannon’s decision incorporates profound ignorance of how government agencies assess national security vulnerabilities, and, it cripples those government agencies’ legal ability to conduct such assessments. Ergo, opening an impeachment investigation of Cannon is appropriate. How can we contemplate leaving on the bench, a judge whose profound ignorance of national security protocols leads her to issue a decision such as this?

    • joel fisher says:

      You are giving Cannon a very big benefit of the doubt: how do you know she doesn’t know exactly what she is doing? Namely, showing a little–really a lot–of leg to President-to-be Trump.

      • Peterr says:

        At several points in the last hearing, Bratt had to back up and give Cannon a fast tutorial on things that she should have known already. After the hearing, her order made it clear that she didn’t understand that the FBI is part of the Intelligence Community, nor that the CIA and NSA are both legally prohibited from acting domestically. She’s either dumb about a lot of things she ought to know, or she’s really good at playing dumb about a lot of things she ought to know.

        Put me down for the former, and there’s no “benefit of the doubt” involved.

    • BirdGardener says:

      Moreover, her obvious bias in favor of the Plaintiff, her blatant misuse of the laws she twists in her attempt to justify her decision, undermines faith in the judicial system at a time when many in the GOP are attacking and encouraging attacks on many of the institutions our democracy depends on.

      I grant you, comparatively few of the general populace are following this closely, but I believe it still has a corrosive effect.

  2. L. Eslinger says:

    Even a superficial examination of Huck’s history will show how deeply intertwined he is with the Federalist Society (and he is yet another Jones Day former partner) and its efforts to be the ultimate puppet master organization. Dearie, in contrast, seems clean of this taint, which is concerning since it seems unlikely that the Trump team would nominate anyone who can’t be counted on to do anything and everything to protect him.

    Given how badly Huck stinks, is his nomination a strategy for ensuring Dearie’s selection? If so, what’s behind this?

      • Ginevra diBenci says:

        After Savage Librarian reminded us of Huck’s wife’s refusal to recuse previously (and thus her unlikelihood of doing so should this reach 11th circuit), I thought the same thing: that Dearie is intended to be the sole even potentially neutral choice.

        Given that Team Trump will refuse DOJ’s suggestions, it’s either Dearie or whatever Cannon decides. I have Pam Bondi nightmares chronically, but they are especially severe now.

    • Mart says:

      They say the left mindset does not work like the right. Still would think we could make Leonard Leo’s capture of the judiciary and his $1.6B into the monster the right has made of Soros.

    • Justlp says:

      I’m not sure how this might impact how he rules, but he was (one of?) the judge(s) who was reprimanded by the IG related to the FISA warrant for Carter Page. It feels hinky to me that DJT would recommend someone whom he has demonized in the recent past. Something doesn’t smell right.

  3. Yogarhythms says:

    “Special Master fight will suck all the oxygen out of the next few weeks of campaign season, ”. Oxygen delivery to living tissues is essential for life as Maslow’s foundation is physiological. Will GQP Nov 8 nominees survive without oxygen? Or will a crack like an Antarctic Thwaites Glacier fracture tfg’s perceived aura? Thanks to SDFL judge and tfg’s documents = FAFO we are all invited to her courtroom to find out.

  4. Former AFPD says:

    I’m going to keep banging this drum. To the extent that Evan Corcoran’s actions suggest that he is a witness or target in the investigation of the handling of the documents surrendered or seized at MAL, he has a material conflict of interest. He can’t act as TFG’s attorney and also be a witness or investigative target. It’s hard to imagine a court accepting any waiver of conflict under these circumstances. I keep wondering when DOJ or a court is going to raise this issue.

    • emptywheel says:

      That may be one goal of unsealing the affidavit. They’ll make his centrality more obvious. And certainly they can object to his role in the SM review?

      • Former AFPD says:

        Emptywheel, Yes, I thought one of the reasons to unseal the affidavit might well relate to Corcoran. There’s a large conflicted counsel argument now lurking in this case when TFG sours on Corcoran.

        • Ginevra diBenci says:

          Trump is temperamentally sour on anyone outside himself. Corcoran will become the next fall guy as soon as it’s convenient.

  5. Dunnydone says:

    Two things…. Good doctor and team… I’d like to see if we can help build you a graphics dept. I honestly think it will be critical for EW and teams forecast and dissection of all this coming down for layman (and professionals and press) to have something similar to what Espn does for nfl. More Americans know more about nfl qb’s hot routes response vs a blitz than they do basic legal stuff. Basically we need clif notes and graphics for the masses.

    I’ve previously mentioned my interactions with djt and the Ivan’s partying at our place in vegas in 2013 and what that set off…. I have a favor to ask offline

    Would you email me about both when you have some time so I can explain

  6. Randy Baker says:

    Again, I much appreciate your careful analysis of what is going on. I do think you made a small slip, however, in citing the possibility of “new specifics about Trump’s negligence.” After all, it is quite possible Trump’s behavior in this matter has been entirely deliberate.

  7. Clare Kelly says:

    Dr Wheeler,
    It is Saturday and I’ve relegated my pearls to the rubbish bin: Fecking brilliant analysis.
    Thank you. Again.

  8. Spocko says:

    Thank you for laying out what might happen next. This is the part that I like, and one of the points I made I’m my post. The DOJ HAS anticipated Trump’s responses and used them against him.
    Now if I was in charge of Dem media response I’d Rev up the Congressional briefing Question big time. I would Also, get in the National Security Experts (especially the ones Fox loves) on the record talking about how terrible Hillary was) like they did with Rubio from 2015 2016.
    I want to Burn them for their Fox News producers.
    “But by demanding one — and by making such unreasonable requests — Trump has ensured that the investigation into his suspected violations of the Espionage Act and obstruction will dominate the news for at least a few more weeks.”

  9. DaveV says:

    DOJ is probably already investigating Corcoran and Bobb for their apparent conflicts in their June 5 disclosures to the DOJ. DOJ should nudge that they are subjects of an investigation into one of DOJ status or other filings. These two should be nowhere close to Classified materials.

    • Former AFPD says:

      This is precisely why these attorneys should be removed from the case based on conflict of interest principles.

        • Former AFPD says:

          Conflicts of interest are litigated in several ways. The DOJ can file a motion to disqualify conflicted counsel or to inquire into conflicts of interest. The federal district court judge can raise the conflict of interest on her own when it is apparent that such a conflict may exist in the case. TFG’s attorneys can bring it to the court’s attention on their own. The court then holds a hearing, sometimes takes testimony, perhaps declarations under penalty of perjury about possible conflicts, and then makes a decision. Disqualification can occur where a lawyer could be a witness in the pending case, where a lawyer is himself under criminal investigation, or where the lawyer has previously represented a prosecution witness. Conflicts can be waived but there is a procedure for that to happen too. TFG would have to personally waive conflicts of interest, and the conflicts and how they might play out in the case would be discussed on the record, usually publicly, in open court. The government has used this strategy in Mob cases (google Bruce Cutler conflict of interest) and in drug cases where lawyers represented co-defendants, or prosecution witnesses as well as a charged defendant. A responsible lawyer discloses a conflict to their client as soon as the conflict appears. It is possible TFG has signed a written waiver of conflict but if the court or DOJ raises the issue, the waiver will be the topic of discussion. I can’t see the DOJ allowing a lawyer/witness/target conflict of the sort here to continue, but then again, we only know what is public about this case and investigation. It hasn’t been formally raised yet. DOJ knows the conflict exists. We will see how/if this issue develops as the case goes forward. Perhaps the potentially conflicted attorneys will just disappear from the litigation.

        • BeingThere says:

          If not disqualified soon, does their presence in the case leave TFG a claim of a mistrial later? If so, and as his modus operandi is to corrupt those in his circle, he may well have ensured they saw classified docs/signed deceitful statements ready for his future claim?

        • Former AFPD says:

          A mistrial happens during trial. There is no indictment so there can be no mistrial. If facts arise, at any stage of a case, which suggest a meaningful conflict of interest, most responsible criminal defense lawyers will advise the client of the conflict and discontinue the legal representation. There are exceptions to this situation, the most significant being that the client has been fully informed of the conflict of interest and has signed a waiver of conflict. Without going into a treatise on the law of conflicts of interest, a client is entitled to zealous representation and the attorney’s duty of loyalty. If these duties are violated by counsel at any stage of the case, including preindictment proceedings, the client has an argument on appeal and also a potential civil suit for malpractice. Whether these claims would be successful depends on the specific factual and legal scenarios that unfold.

  10. BobCon says:

    I’m curious if the government would not just refuse access to top level material by people like Huck and Corcoran but detail the specific issues. Getting clearance isn’t just a case of signing an agreement, it involves extensive disclosures of sources of income, clients, contacts with foreigners, civil suits, arrests, and more, and I’d doubt a number of people Trump wants in the loop are prepared to do any of that.

    I think the press is inclined to treat this as nothing more than a fight over a mediator in an NBA contract dispute, and I’d be curious what lengths the government will go to make the differences clear.

    • earlofhuntingdon says:

      The only thing Donald Trump wants to do with a level playing field is tilt it, or refuse to play on it.

      Huck is an obvious fox in the hen house. He has impermissible ties to Trump through his political work, from having been a partner at Jones, Day, which virtually controlled legal staffing in Trump’s administration, and through his wife, who sits on the 11th Cir. bench, the court that would hear any appeals concerning Cannon’s rulings and judgments.

      Trump’s team would assume that DoJ’s leadership would never accept him. So, their play is for Dearie, who seems marginally acceptable. But why Dearie, especially as Trump would disagree with any DoJ pick just because they made it, especially the excellent Barbara Jones.

      • BobCon says:

        EW notes it’s not just a fight over a possible SM who may be in the loop but others like Corcoran as well, and I’m sure DOJ wants ironclad systems in place to secure information.

        Trump, of course, wants a system with all kinds of leak opportunities and deniability.

        The inclination of the press, especially the Dawsey and Schmidt types, will be to pretend the stakes are low and both sides are just maneuvering in the abstract. DOJ will need to break through that kind of framework.

    • Keith says:

      Getting clearance requires that the FBI interview your neighbors, co-workers, ex co-workers, high school teachers, friends from HS, etc. Weeks and weeks of interviews.

    • Arteberry says:

      There’s no question Trump is angling for access to the classified documents, the chance to secretly argue to the SM those documents are declassified, and beyond that to have intelligence agency records re-designated PR, in which he has at least a limited equitable interest. Nonsense, of course, but it all begins with the assertion that the recovered classified documents might not really be classified (despite Trump’s failure, so far, to make a direct claim to the court that he declassified those documents.).

      All of this makes me wonder about another card DOJ could play if all else fails. Couldn’t President Joe Biden (you know, the current president) issue an order that says, essentially, “while the executive branch does not have the slightest evidence that any classified marked documents were declassified during the prior administration, and regards all such documents as classified to this day, out of an abundance of caution, any such documents recovered by the DOJ are hereby deemed currently classified at the level indicated by their markings.” I’m sure DOJ would prefer not to use this option, as it gives off the vibe—not an admission at all but the vibe—that hey, maybe Trump really did declassify those documents. But if Biden today says they are classified, no matter what happened before, then that’s it and no SM or judge can say otherwise. Certainly DOJ will not contemplate asking Biden to pursue this course unless it gets shafted by both the district court and the 11th Circuit on the motion to stay.

      • Arteberry says:

        I should add that the presently suspended ODNI review includes a classification review. Conceivably, when the review is done, the IC might conclude certain documents no longer need to be considered classified. Assuredly, many will still be considered very much classified.

      • Tom R. says:

        Outside of the MAGA fever swamp, the claim about a “standing order” that automagically declassified things is a nothingburger, and there is no need for Biden or anybody else to defend against it, for multiple reasons:
        ++ It is a self-serving assertion with no evidence to back it up.
        ++ It is a priori wildly implausible.
        ++ The relevant statute refers to Defense Information (whether formally classified or not).

        From his point of view, at the time: If he declassifies stuff, that means everybody is allowed to read it. In contrast, as president, he can authorize himself to read stuff while still classified. That optimizes his position of superiority over other people, which is his best move, from the narcissistic point of view as well as the practical point of view.

        His aides would have talked him out of any such “standing order”.

        That said, keep in mind that there are multiple different things going on. Each side gets to present a legal case, and each side gets to wage a PR campaign. Sometimes it is very asymmetrical, as we saw in the Mueller investigation and the two impeachments:
        — One side fixated on the legal case.
        — The other side fixated on the politics, PR, and demagoguery. They were really good at this.

        Recently things have become a little more symmetrical. For example, the Thompson committee has been working the PR angle.

        It gets interesting when something that strengthens the PR campaign weakens the legal case. The defense has made quite a number of unforced errors lately. For example:
        *) He admitted he knew there were TS/SCI documents in the “45 office”.
        *) He admitted he knew the government wanted the documents back.
        *) The “standing order” falls in this category. Yes, it muddies the water and scores points with the base. However, members of the jury, ask yourselves: Why would somebody lie about this? Such a childishly obvious lie?

        • civil says:

          Steve Vladeck also presents a good argument that if Trump did have such a standing order, then it would reflect terribly on Trump (yes, many of Trump’s actions reflect terribly on him, but this would be another extreme example):
          “… That would mean that Trump declassified some of our most sensitive national security secrets not because he wanted the public to know about them, and not because he thought they were wrongly classified; he did it — if he did it — because he was lazy. In this scenario — this defense, such as it might be — he wanted to make it easier to take what might be the crown jewels of our national security state back and forth with him without having to do what every other government official does; that is, use a “secure compartmentalized information facility,” or SCIF. Secret technology that we don’t want to share with China? Too bad. Human intelligence that could be used to smoke out American agents in foreign governments? Not his problem. Specific details about the deployment of U.S. troops overseas? Whatever. …”

          Of course, that fits with Trump being a narcissist: he simply does not care about the impact on others. So I think that with respect to his narcissism there’s a tension: (1) I want to have access that’s “special” and others don’t have (a good point you made), and (2) I have the power that no one else has to declassify these, and I like making things convenient for myself. But I doubt that he had such a standing order, and he’ll say whatever he finds convenient to say in the moment to buttress his current argument; right now, he finds it convenient to claim in public that he declassified them. His lawyers aren’t going to say it in the court docs though.

  11. Spocko says:

    I also wonder if there are going to be leaks/stories about other breaches of security and what other countries found out (but nothing prior to his leaving) that would show how dangerous it was to be stored elsewhere than a SCIF.

  12. TimB says:

    Tiny typo in what should be the most quoted sentence of any written this week by anyone.
    “If not for the Trump’s demand for a Special Master, DOJ likely would have put its head down and mentioned nothing of this investigation until after the election.”
    Strike the first “the.”

  13. Unabogie says:

    Regarding the potential need to search Bedminster, someone zoomed in on the video of Trump’s move to Bedminster with boxes filled with some sort of documents. It appears that one of the boxes was marked “45 Office” which of course is where we know classified secrets were stashed. I can’t verify this photo is accurate, so just passing it along.

  14. DaveV says:

    In Trump’s proposal he want’s the Special Master process to “identify any presidential records in the seized materials and making recommendations to this court as to any classification disputes between the parties”.

    This should be another DOJ line in the sand. No classified document may be reclassified by the court or SM. The incumbent is responsible for classification, not the f-POTUS.

  15. Drew says:

    If Cannon rules as we fear she will, appoints Dearie as Special Master, orders it to go ahead and the 11th Circuit doesn’t stay her ruling (or the DoJ thinks that might be how it will go), is there any possibility or likelihood that they would indict Trump in DC and issue subpoenas for specific documents (asking the DC judge in the criminal case to go around or supercede Cannon’s ruling?

    IANAL I don’t know how these rules work. Cannon is jumping in to supercede Reinhart’s jurisdiction via a civil suit, it seems like a criminal indictment could supercede a civil suit, but I don’t know. It’s pretty clear that DOJ would prefer to spend a lot of time building evidence and a fully worked out case, but in the case that their investigation is being sabotaged by this judge, they do know which classified documents would build the center of their case and have them logged pretty precisely. I would think they could present enough evidence to a grand jury to get an indictment. The question is whether they could pull this off in a way that does an end run around the 11th Circuit as well.

    • Puriya says:

      And maybe it’s not that there’s something fishy about Dearie, but that Trump and Co want to begin their crazy protocol, which involves the SM sharing the documents with them. Which is why they proposed this fairly up-and-up person who can’t be plausibly denied by DoJ. Their protocol is so dicey that they don’t need a comrade to be the SM. They just need the protocol to be followed.

      This filing has really depressed me. DoJ needs to make a very bold move now.

  16. Gatorbaiter says:

    Thought this might interest you, mediaite has a video of tfg taking heavy looking boxes from magat-lagoon to bedminster on May 8th, 2 days after being notified by NARA that documents were missing. “The plot sickens”

  17. Ddub says:

    Grateful for ew, brilliant and fearless work.
    TFG is going to help muck up the midterms for the GOP?
    Such a shame. A political party that in the whole history of the planet never had it so good, got all the structural and cultural breaks, and has been so corrosive to the body politic for so long. Zapping energy and hope for generations of Americans.
    But now, multiple fast eye blink, it feels like at last that magical shoe is on the other foot, and I am here for every second of it. Argue long term that it’s good to take TS/SCI to the house. For once the delay won’t be spun, it’s going to spin him.

  18. Badger Robert says:

    I anticipate the government refusing to allow the classified documents now identified, or additional documents that may be added, to ever be reviewed by a Sp Mstr. A confrontation is looming if the courts invade these national security powers assigned to the executive. That could be how the ultimate indictments are blocked.
    But Ms. Wheeler’s political comments are precisely correct and overdue. Given all the other problems the Republicans face, having the former President dominate the news like an incumbent is a nightmare for them. Its a turnout driver for Dems and Dem leaners, and some small % of Republicans and Republican leaners will switch their votes. There won’t be many switchers. But they will be among the best informed voters and each one is a -1 for Reps and a +1 Dems, because they will vote.

  19. Badger Robert says:

    The political effect of an appellate court deciding that the government must disclose classified material to people outside the national security zone is not going to be positive for the Republicans, in my opinion.

    • readerOfTeaLeaves says:

      I’m skeptical that a majority of Americans fully grasp this important point.

      IMVHO, many of us have been bamboozled by the idea of ‘possession’, as if this is some kind of ‘property rights’ issue. (And trust me, the right is ALL about property and ‘property rights’. If that is the framework, they’re putty in Trump’s tiny hands and very vulnerable to his claims of being ‘raided’ and victimized. Toxic and dangerous to have this in a ‘property rights’ frame.)

      And Judge Aileen Cannon seems to obsess on notions of property, i.e., ‘possession’, as if this is property law, rather than national security law. He had no right to possession, but this was a national security – NOT property rights — issue.

      This muddling of categories plays to Trump, but weakens the nation.

      • bidrec says:

        I noticed this too. The distinction between custody and beneficial ownership can be rather abstruse. Gold in a jeweler’s safe is property of the bank until the jeweler cuts off a piece to make into jewelry. Then he pays the bank for it. He has custody but not ownership of the gold brick.

      • CambridgeKnitter says:

        It seems to me that it’s easier to talk about this as property rights to normal people. He’s a thief claiming to own what he stole. Or you could talk about him as the valet parking guy who drives off with your car saying, “You gave me the key.”

  20. rip says:

    Wondering if Putin’s “genius” isn’t showing in this charade, just like his 1-2 day “Special Military Operaion” in Ukraine. It’s sad to see some of these “stable” geniuses failing so blatantly.

  21. Puriya says:

    So, suppose Cannon denies the stay and approves the Trump protocol and appoints Dearie.

    DoJ appeals her stay decision.

    While the 11th Circuit is considering the stay appeal, DoJ will refuse to turn over classified documents to Dearie because the protocol involves revealing them to uncleared folks. Would Cannon then subpoena DoJ?

  22. Overshire says:

    Two thoughts:
    One, What chance is there that DOJ is only tolerating Cannon’s interference in the case long enough for TFG’s team to say “Presidential Records Act” loud enough for Beryl Howell to notice and yank the entire affair back to the DC Circuit where the law says it belongs?
    And two, wouldn’t it be lovely to see DOJ search Bedminster, find TS/SCI material in the boxes shown in the tweet mentioned above, and seize his airplane, just like they do any other vehicle they find being used to transport stolen goods? I’d love to read the news about DJT having to fly commercial to get his ass home for the winter.

  23. Alan Charbonneau says:

    The concluding paragraph gives me hope for the fall election:
    “But if new specifics about Trump’s negligence and efforts to obstruct the investigation are made public, then November’s election will be precisely what Republicans are trying to avoid it being: not just a response to the Dobbs ruling overturning protection for abortion access, but a referendum on the way Republicans have sacrificed American security in their fealty to Donald Trump.”

    May it come to pass…

  24. PJ McNabb says:

    Have been a reader for years, the content here a thoughtful tonic to the media. The film of Bedminster boxes suggest two other speculative rabbit holes. First: the world wide “sources and methods” safety stand down by the CIA October 2021. Second: Kash Patel’s announcement of declassified releases he promised to post this spring. This could foster the urgency at DOJ earlier this year. I can not stop thinking about 42 empty folders in TFG’s office. All speculation, but I haven’t seen these lines drawn. Is this to much of a reach?

  25. Justlp says:

    I’m not sure how this might impact how he rules, but he was (one of?) the judge(s) who was reprimanded by the IG related to the FISA warrant for Carter Page. It feels hinky to me that DJT would recommend someone whom he has demonized in the recent past. Something doesn’t smell right.

    [This comment was published twice in this thread. Please advise which one should be kept by reply. Thanks. /~Rayne]

  26. Spencer Dawkins says:

    Dr. Wheeler, you’ve been on fire for weeks, and I appreciate every post you’ve made on the Mar-a-Lago search especially.

    I do have one thought – when you say, “If not for Trump’s demand for a Special Master, DOJ likely would have put its head down and mentioned nothing of this investigation until after the election. But by demanding one — and by making such unreasonable requests — Trump has ensured that the investigation into his suspected violations of the Espionage Act and obstruction will dominate the news for at least a few more weeks.”, ISTM that “a few more years” is also a reasonable forecast, since we know that Trump is going to fundraise every day based on how unfairly he is being treated, file every motion his lawyers and accomplices can think of, and appeal every decision all the way to the Supremes.

    I’m not happy about that, but I won’t be surprised when it happens.

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