Don’t Analyze Trump Legal Filings Based on the Law, Analyze Them Based on Power

I think people are making a grave mistake of applying principles of law to Trump’s legal maneuvering.

Trump’s lawyers are not making arguments about law.

If there were lawyers concerned about principles of justice participating in his defense, they’d be stridently advising him to work on a plea deal admitting guilt to 18 USC 2071, removing government documents, maybe even agreeing to the probably unconstitutional part of the law that would prohibit him from running for President again, in exchange for removing the more serious 18 USC 793 and 1519 charges from consideration. Such a plea deal is never going to happen. Win or lose, Trump is pursuing power, not adjudication under the law, not even recognition of the law.

One way you can be certain about that is because Evan Corcoran, who got his and Steve Bannon’s asses handed to them in Carl Nichols’ courtroom making legally ridiculous arguments that treat Executive Privilege as a theory of impunity applicable to everyone who is loyal to Trump, has taken from that setback not that his claims about Executive Privilege are ignorant and wrong. Instead, he has doubled down on that approach with Eric Herschmann (and probably the Two Pats, Cipollone and Philbin), undoubtedly believing that so long as he can delay the time until Bannon reports to prison and Trump’s former White House Counsels testify about what really went down on January 6, his people can reclaim Executive authority and make all this go away.

He’s definitely not wrong that he can delay the time until Bannon is jailed, and he may not be wrong about the rest of it.

Four years ago last week, Paul Manafort entered into a plea agreement with Mueller’s team and then promptly started lying about matters to which he had already confessed to get the plea deal in the first place. Manafort managed to sustain the appearance of cooperation through the mid-term election, after which Trump took action that would have been politically problematic before it — firing Jeff Sessions and hiring Billy Barr. Amy Berman Jackson ruled that Manafort had lied during his plea deal. But it didn’t matter. Trump and Barr spent the next two years erasing every legal judgment against him and the Trump flunkies that had remained loyal, erasing Manafort’s conviction and even his forfeiture. They erased a good deal of evidence that he conspired with Russia to get elected in the process. In the end, everyone who played a part in this process ended up better off — in significant part because the process, especially Barr’s part in it, has never been fully reported for what it was. Trump even used the ensuing process of discrediting the Russian investigation as a means to train Republicans — along with likely Fox viewers like Aileen Cannon — to believe he was mistreated in the Russian investigation, when the opposite is the case.

Along the way, Trump did grave damage to rule of law and undermined trust in US institutions. For him, that was a side benefit of the process, but a very important and lasting benefit, indeed.

He’s undoubtedly trying to play the same trick again: Stall the investigation past the election, and then (seemingly confident that Republicans will win at least one house of Congress, by democracy or by deceit) flip the entire investigation into yet another example where Trump has not flouted the law, but instead the law has failed to recognize Trump’s impunity from it.

Consider the analysis of Trump’s objections to Judge Raymond Dearie’s draft Special Master plan. As noted, Trump wailed about two things: that Dearie asked whether Judge Aileen Cannon’s inclusion of any Rule 41(g) claims (which is basically a legal way to demand property back before an indictment) in her order accorded with law and asked Trump to provide a list of the documents he claims to have declassified.

[W]e are concerned that it contemplates resolving issues that were not raised by Judge Cannon in her order, her order denying the stay, or oral argument. Specifically, Judge Cannon was aware of the likelihood of eventual Rule 41(g) litigation and established a process by which the Special Master would evaluate any such claims before reporting and recommending to the Court. While the Plaintiff is, of course, willing to brief anything ordered by the Court under the auspices of the Special Master, we are concerned that the Draft Plan directs the Plaintiff to address whether Rule 41(g) litigation should be litigated under Case No. 9:22-MJ-08332-BER. The Plaintiff respectfully sees no indication the District Court planned to carve out related litigation for a merits determination by the issuing magistrate for the warrant in question. Most importantly, none of the District Court’s Orders have ever indicated that this was even a consideration.

Similarly, the Draft Plan requires that the Plaintiff disclose specific information regarding declassification to the Court and to the Government. We respectfully submit that the time and place for affidavits or declarations would be in connection with a Rule 41 motion that specifically alleges declassification as a component of its argument for return of property. Otherwise, the Special Master process will have forced the Plaintiff to fully and specifically disclose a defense to the merits of any subsequent indictment without such a requirement being evident in the District Court’s order.

Virtually everyone has suggested that the reason that Trump is balking at the order to tell Dearie which documents he declassified is because his lawyers want to avoid lying and they know Trump hasn’t declassified any of these documents. Such observations apparently apply even to Evan Corcoran, who (according to the NYT) suckered Christina Bobb into signing a declaration he wrote about a search he had done that claimed a diligent search was done that has since been proven not to be a diligent search.

Suffice it to say I’m skeptical that these lawyers — at least some of them — would be averse to filing a declaration saying, “Our client tells us he declassified it all,” if it would serve Trump’s purposes. All the more so given that none of them were in a position to know whether Trump declassified them all or not, and Trump not only doesn’t care whether he lies to his lawyers, he’s probably constitutionally incapable of doing anything but.

That’s not the reason why they’re balking about Dearie’s request for a list of documents Trump declassified.

Consider the schedule Trump proposed.

This schedule ensures that key decisions come to a head in mid-November, after the election.

Trump’s goal here is not any final determinations from Dearie (absent a determination that the FBI was mean to Trump just like they were to Carter Page). Cannon’s order fairly obviously invites Trump to contest Dearie’s ultimate decisions so she can de novo decide the issues. Trump’s goal is undoubtedly (because it always is) to create conflict, to sow an invented narrative that DOJ is out to get him. And Trump’s optimal outcome is not necessarily even that Cannon will say Trump declassified all these documents, including some of the Intelligence Community’s crown jewels. Such a proposition might even piss off a few of the Republicans who’ve not entirely lost their mind, until such time as Trump convinces them through the process of repetition and demonization that the IC should never have been spying on (say) Russia in the first place.

Trump’s goal here is to sustain the conflict until such time as Jim Jordan can save him, and the two of them can resume their frontal assault on rule of law again.

All Cannon needs to do to serve that end is at some point, after the election, declare that Trump’s claims about classification, even if incorrect and foolish, are reasonable for a former President. That’s all it would take to make it prohibitively difficult for future prosecutors to indict the 793 charges. This is the same way Barr made it prohibitively difficult for prosecutors to charge outstanding Mueller charges, notwithstanding the number of self-imagined liberals who blame Merrick Garland for that damage.

A more obvious tell comes earlier in Trump’s proposed schedule.

He wants the classified documents shared with his team — none of whom currently has the requisite clearance — this week. Only after that does he want to create the privilege log for the 64 documents his lawyers have had for four days; he wants another two weeks (so 18 days out of a 75 day process, total) before he makes such privilege determinations.

To be fair, that may be what Judge Cannon intended, too. She, meanwhile, will have to review at least one protective order this week, and may use that as further opportunity to muck in the process, to reinforce her demand that DOJ start the process of sharing classified documents even before the 11th Circuit weighs in.

There are probably two very good reasons why Trump wants classified documents in hand before they make any privilege claim. First because (as I have repeatedly pointed out), Cannon used those potentially privileged documents as the harm she hung her authority to wade in on. If Dearie rules that — as DOJ has repeatedly claimed — these documents were pulled out not because they really are privileged, but only because they set the bar for potential privilege so low as to ensure nothing was reviewed, then it takes one of the three harms that Cannon has manufactured off the table. Every time a claimed harm is taken off the table, another basis for Cannon’s power grab, and another basis from which to claim conflict, is eliminated.

Trump needs to forestall that from happening until such time as he has created more conflict, more claimed injury.

The other reason, I suspect, that Trump wants the classified documents in hand before the potentially privileged documents is because he knows that some of the classified documents he stole involve either his White House Counsel (which would be the case if documents pertaining to his Perfect Phone Call with Volodymyr Zelenskyy were in the stash) or his Attorney General (which might be the case with the clemency for Roger Stone). DOJ has always limited its comments about attorney-client privilege to those involving Trump’s personal lawyers, and that approach has continued since then, even in their motion for a stay before the 11th Circuit. They’re not wrong on the law: classified documents involving White House or DOJ lawyers are obviously government documents. But that wouldn’t prevent Trump from claiming they are privileged (or Cannon agreeing with him on that point).

Thus the delay. Trump needs to delay the potentially privileged review until such time as he has those classified documents in hand and can claim that DOJ didn’t include all the potentially privileged ones because they assumed that government lawyers work for taxpayers, not for Trump.

It doesn’t have to be true or legally sound. It needs to be a conflict that can be sustained long enough to let Cannon decide, and decide in such a way that Trump keeps claiming he’s the victim.

Like I said, Corcoran may not be wrong that this will work. A lot depends on what the 11th Circuit decides. But a lot, too, depends on commentators continuing to treat this as a good faith legal dispute when instead it’s just more manufactured conflict.

138 replies
  1. Rwood says:

    It’s his mindset. Why would he not feel he can get away with it?

    This is a man most would describe as a career criminal since his teenage years. Born into privilege and coached by some of the best grifters of his generation. It’s the family business in more ways than one.

    The sad part of this is that he is living proof that our justice system is broken. Trump is notoriously bad at being a criminal. He gets caught, a lot. His business ventures fail one after the other. His record of grift has filled many books. Six bankruptcies and a slew of charges spanning a lifetime. Thousands of lawsuits. Add to all this his actions while in office and it just gets exponentially worse.

    Yet he has never seen the inside of a jail cell.

    Prediction: He or someone he knows has either: A. Sufficient influence on, or B. Sufficient dirt on the 11th judges. He’ll apply that leverage as he has with Cannon and get the ruling he wants.

    This war will be won or lost at the ballot box, not the courtroom. Trump knows it, but I think we’re still waiting for the politicians on the left to understand that.

    • Bill Crowder says:

      ” … I think we’re still waiting for the politicians on the left to understand that.”

      Do you really think that it is the politicians on the left who do not understand what Trump is up to?

      Or is this just a let’s bash the progressives and blame all our problems on them?

      • Commander Ogg says:

        It is difficult to change a life time of beliefs, especially if you’ve played by certain rules and your opponents have as well. It took Senator Schumer a long time before he realized he needed to play by McConnell’s rules in order to pass President Biden’s Climate bill. He did not like doing it but his Machiavellian scheme worked.
        I suspect that after Judge Cannon rejected their offer to play by the rules Garland’s DOJ will show just how nasty they can be if you force them to play hardball. This is going to get ugly.

      • Chuck M. says:

        Apologies, but can you think of any Democrat able to summon up the grit needed to drag poor Hillary into all those 40+ hearings? Dumbassian as it was, that’s the passion the Democrats on the left are up against. It’s manic.
        What they could be doing (and may well be doing) is reaching out to those centrist (rational) Republicans, aggressively and trying to form bonds, even at the voter level. The MAGA have opened a perfect opportunity to reinforce political cooperation. Do the Dems see it?

    • AgainBrain says:

      Mythology-building for someone like him is rarely effective, he’s too hated by too many. He’s hurt so many it’s trivial to find the “directly-harmed and willing to talk about it”. It’s also why he can’t become a martyr, though he so desperately wants everyone to believe otherwise. говорю ясно?

      Neither the unsubtle “he’s scary and cannot lose” drumming, nor the threadbare “Dems in disarray” notes are landing.

  2. Peterr says:

    They also are using this filing to preemptively lay the blame for any delays on the government, rather than their own idiocy. Repeating this from the comments in the previous post, from the conclusion of Trump’s filing, with emphasis added:

    In short, the Plaintiff has every interest in expeditiously moving forward on the document review, characterizations, and any ensuing litigation. With the Government’s help, in terms of access to the materials and clearance for Plaintiff’s attorneys, we believe the parties can meet the expected deadline of November 30.

    This a problem of Trump’s own making, as he could have hired counsel who (a) are not witnesses to the crime of obstruction, and (b) have already been through some level of security screening. Instead, Trump has gone with lawyers from the firm of Political Ambulance Chasers R Us.

    Not a good play from a legal perspective, but if you are looking to manufacture conflict, it’s a good play indeed.

  3. SaltinWound says:

    Some of Trump’s lawyers might still be willing to sign a piece of paper saying their client told them he declassified it all, but I don’t think anyone would take that sort of evasive language seriously at this point.

    • bbleh says:

      Not even Cannon? Or a similar judge or two on 11CA? And certainly CNN et al. would.

      It really is gonna take someone like an appeals panel to put a firm stop to this nonsense, or it’s gonna continue indefinitely. And I don’t know whether there are any such people in the system right now, not least because (1) any substantive ruling against Trump will cause the RW noise machine to go into full howl, very much including death threats against whatever judge(s) make it, and (2) partially as a result, because temporizing, treating all these arguments as at least putatively in good faith, and trying to split the difference some way, is both easier and superficially even-handed.

      We’ll see. And meanwhile, I wonder how Justice Roberts feels about how all this reflects on the federal judiciary …

      • Eichhörnchen says:

        When court rulings take into consideration that the “RW noise machine [will] go into full howl, very much including death threats against whatever judge(s) make it,” we are 100% done for.

      • Taters says:

        I’ve disagreed with Marcy about Garland (notwithstanding that she is an expert while I’m merely some rando) but “trying to split the difference some way, [being] easier and superficially even-handed” completely comports with my Peanut Gallery view of the proceedings but cynically, like “yes, he ‘got away’ but that shows how system works to protect everyone’s rights, because we did the best we could within that framework”.

  4. Michael1976 says:

    “All Cannon needs to do to serve that end is at some point, after the election, declare that Trump’s claims about classification, even if incorrect and foolish, are reasonable for a former President. ”
    But that wouldn’t save Trump from the obstruction charges. Cannon would have to exclude the documents with classified markings to save Trump from them. If a cop comes to my house with a subpoena demanding any marijuana in my house and I lie and tell him there’s no marijuana in my house, I’m guilty of obstruction, regardless of whether or not I think mariuana is legal in my state.

  5. Pete T says:

    I’ll take the risk of asking a potentially very naive question.

    Were Jordan to become Speaker next Jan – and even if McConnell were to become Senate Majority Leader (admittedly and end times scenario) – how does that help Trump through the then even more likely end of Biden term in 2024?

    I abstractly realize they can muck things up even more, but I am at a loss to think of how wrt to Grand Juries, possible indictments, etc. And even in the larger context of multiple Federal inquiries, the Georgia inquiry, and New York inquiry/inquiries.


    • Ben says:

      Perhaps by exercising “oversight” over the DOJ? Committees, investigations, etc that can be used to halt or impede their progress. Asking them to preserve or turn over internal documents that are being used in the investigation. Or even help inform Trump what DOJ has or knows. I don’t know how successful those would be, but they would definitely find a way to make DOJ’s job harder.

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      • Peterr says:

        Remember Hilary Clinton’s 11 hour testimony before Jordan’s Benghazi committee? That will be like a preseason warmup game to what Jordan et al. will bring to their version of a J6 committee.

        Remember: the point for Jordan and the GOP is not to govern but to make governing as difficult as possible.

    • Unabogie says:

      I’ve seen the idea floated that Jordan could try to force a bill to “defund” the DOJ, or even force a government shutdown unless the investigation was stopped. I am not sure how effective that would be since that seems like it would be extremely unpopular. But Gym has never shown himself to care much about how he looks.

      • Yargelsnogger says:

        Plus, I think, just the additional publicity they would bring to the case. Their lies would get repeated in the media ad nauseum, and like “no collusion” would become internalized by more and more people. Finding a jury untainted by that would become increasingly difficult and odds of an exoneration at trial also higher.

      • chaoslechler says:

        “ But Gym has never shown himself to care much about how he looks.”

        He only seems to care that he looks like a guy who doesn’t own a suit jacket or tie.

      • Silly but True says:

        This. The House holds the “power of the purse,” and funding bills generally get passed on simple majority, or it can be attached in political deal.

        Also repurposing the “Jan. 6 Committee” to the “Impeach and Harass Biden & Biden Appointees Committee.”

    • massappeal says:

      What others have said but basically, remember what congressional Republicans did with Benghazi (2 Senate committee hearings, 6(!) House committee hearings spread out over four years, the last ending just a month before the 2016 presidential election).

      Now imagine that in coordination with Trump’s traveling road show and Trumpist judges from Cannon to Kavanaugh.

      Dr. Wheeler’s point about power can’t be overstated. This is not a debate competition with judges awarding points for logical arguments. It’s not even a baseball game with impartial umpires “calling balls and strikes”. This is politics, and it’s about power.

      One of my great fears is that the pro-democracy forces (DOJ, congressional Democrats, most judges, the Biden administration, most media outlets) fail to recognize that fully, and in time.

      • Judy says:

        You forgot the citizens/voters. We need to keep the House and Senate and as many state positions as possible.

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        • massappeal says:

          Thanks, and I agree about the importance of the control of the House, Senate, and various state offices.

          To my mind, that reinforces my (and before that, Marcy’s) point about power: this struggle may be about whether the rule of law will prevail, but it is in some fundamental ways not a struggle about law and legal arguments. It is a struggle about political power. To the extent that supporters of the “rule of law” fail to recognize that dynamic, they (we) are inflicting grievous harm to our “side” (and to the rule of law).

  6. rita says:

    The good faith legal arguments still must be made.

    But I agree with Ms. Wheeler. Trump is a master at using legal process for reasons other than prevailing legally. (His allies used meritless election fraud lawsuits not necessarily for the purpose of winning but to amplify the Big Lie and to muddy the waters to help the Fake Elector scheme.) Delaying the day of reckoning almost always works in his favor. It strengthens his hand in negotiations. He doesn’t even have to use his own money. His abuse of the legal system is amply financed by donors.

    The responsible news media largely overlooks his manipulation of the legal system and the reasons for it. And its dedication to appearing fair and balanced means that it treats even Trump’s silliest legal arguments as if they were sound.

  7. harpie says:

    Ifrah Law
    https:// www.
    1717 Pennsylvania Ave, N.W., Suite 650 Washington, D.C. 20006

    Hands-on Counsel, Gloves-off Litigation
    [^^ I think that's hilarious…like they chose the slogan just to reel TRUMP in]

    • Ginevra diBenci says:

      I could hardly believe that was real, harpie! I sat there staring at it for minutes and still failed to resolve the dissonance between the tony DC address and the middle-of-the-night-infomercial slogan.

      You’re right. It’s like it was created just for the purpose of reeling in Trump. Most MAGA types couldn’t afford their fees.

  8. Oldguy says:

    I appreciate the part of this post that says it appears Mr. Trump will probably claim “declassified” documents referencing White House counsel as privileged and hence erroneously excluded by DOJ from its original set of potentially privileged documents, as I had been struck by the apparently intentional imprecision of use of the word “privileged” by his attorneys in their filings.

    Mr. Trump, William Barr, Mitch McConnell, the federal district judges appointed by Mr. Trump and Mr. Bush who have claimed broad authority to reverse longstanding legislative practices, and the Supreme Court justices abusing the shadow docket have all been doing the equivalent of smashing judicial crockery, while the media has reported the willful destruction as normal process. Commenters then lament the broken process, and people like Mr. Trump try to use the destruction to consolidate power.

    • atriana smith says:

      That’s been the strategy for every “drown government in the bathtub” Republican since the…what? 80s?

      Get government haters elected. Let them break things. Then yell about govt being broken. Elect more govt haters.

      Rinse, repeat.

  9. DAT says:

    As bmaz has said in the past, Trump is owed a bit of respect. (Don’t call him Drumpf, etc.) I agree with bmaz. That’s why you’ll never hear me call TFG “yam tits.”

    On a similar line, I don’t like to see him (TFG) called “stupid.” Firstly, because that doesn’t differentiate him from the rest of humanity. I’m pleased to not consider myself “stupid,” yet I do stupid things on the regular. A more serious reason to avoid calling him stupid is that to do so invites us to underestimate him. Underestimating Trump is bad for your (and America’s) health.

    • bidrec says:

      In 2016 in an interview with Sam Zell CNBC joked about the Trump candidacy. Sam Zell said, “Do not underestimate Donald Trump.” He was very stern in his demeanor. Sam Zell is a private owner of part of The Wall between San Diego and the Tijuana Airport. I have always thought that part of the wall urgency was to benefit Sam Zell.

    • civil says:

      No, Trump is not owed any respect. He’s a dangerous gaslighting con artist and a malignant narcissist who has already done great harm and will continue to do so. Agreed that the danger he poses should not be underestimated.

      • massappeal says:

        Can we agree that Trump is “owed respect” similar to the way any dangerous opponent—regardless of how immoral, uncouth, or unkind—is owed respect? (Otherwise, one runs the risk of underestimating that opponent, and thereby losing the contest.)

        • bmaz says:

          It is about respect for this blog. Please use actual names people understand, not childish bullshit they do not.

          • Yorkville Kangaroo says:

            Yep. I doubted that bmaz has a requirement to show respect to the Hippopotus which is why I always refer to him as The Donald which was Ivana’s appelation for him. The Donald was and continues to be a supercillious and flaccid personality puffed up by the media in NYC. He’s the classic Emperor with new clothes.

            bmaz rather disfavors childish name calling though.

    • Eichhörnchen says:

      Whoever argued that Trump is owed respect? Such names are childish and do not further conversation.

      Drumpf, by the way, was the original Trump family name when they emigrated from Germany. It fits Donald to a tee.

      • Mister Sterling says:

        Indeed. The reason we’re in the position is because Trump has been respected for far too long. Around the turn of the century, New York State should have been looking into Trump’s illegal business, accounting and tax practices. But alas, we’re just doing that now, after he has served a term and after he has steered the judiciary to break everything (which yes, started under Gingrich and Bush 43). There is no good reason people should fear Donald Trump, and yet too many elected people did (and NBC did). And here we are. It’s too late to prosecute him for anything. The empire is in full decline.

        • Scott Rose says:

          Trump is stupid in this sense, that, knowing himself the target of a criminal investigation, he brought a civil action, in which if he ever pleads the fifth, a negative inference can most likely be made from his having done so.

          • ScorpioJones, III says:

            Forgive the Rand reference, but I have always viewed Trump as having “the cunning of the unintelligent” What I mean is that I damn sure respect the copperhead under the tree, but I doubt the copperhead has the intelligence to outsmart my hoe or fool me consistently

        • HW3 says:

          There is some large but unspecified number of other real estate grifters (Chuck Kushner for one) who are sure to be doing the exact same valuation (high for loan collateral, low for taxation) scam that Trump has been doing. I guess I would like to see them all brought down just like I hope NY brings Trump down. But they’ve been letting them skate on this since first building in the city went up above 3 stories.

          • Bruce Olsen says:

            In part you can be sure he swung his mob affiliation around from time to time. He intentionally chose a design for Trump Tower that would make him dependent on overpriced Mafia concrete and it served him well.
            And in part the Manhattan developers (and everyone else at the top ov NYC Society) considered him a lightweight joke from the outer boroughs, so who cared what he did?

            • Yorkville Kangaroo says:


              It’s basically how it all got started.

              Trump makes a deal with the (mob run) unions through Cohn to finally get Wollmann Rink off the blacklist.

              The rest, as they say, is history.

        • Yorkville Kangaroo says:

          “…Trump has been respected for far too long.”

          Really? Who by? No one in NYC. He got 9% of the vote in his home county! Certainly very few with any brains at all. His only admirers are thse that live in the basket HRC mentioned.

      • PeterS says:

        I for one don’t care if Drumpf was or was not the original family name. His surname IS Trump.

        Many of us have surnames that have at some point been anglicised or are new versions of old English names. And we expect our current surnames to be used.

        I’m happy to insult Trump – that lardarsedorangefuckface – but I haven’t changed someone’s name to insult them since leaving school.

        • darms says:

          call him whatever you want to or better still, don’t call him at all. Imho TFG gets way too much free media publicity and has now for quite some time. No more, no more, make it stop…

  10. Amicus says:

    All of this is no doubt correct, but DOJ has to prevail on the legalities in order to go forward. It bears repeating that if the 11th Circuit issues the requisite decision it can remove the marked classified documents from Judge Cannon’s control. And it seems that that is what DOJ has deemed essential. It is willing to share the other documents on a Relativity database – that’s what you do with documents material to a commercial dispute – not state secrets. Like everyone else here, I’m looking forward to Trump’s 2 p.m. deadline filing today, which will likely be another nothing-burger. The court of appeals appears to have positioned this to decide the stay motion very quickly: I would not be surprised if they decide it this week.

    • emptywheel says:

      Agree. DOJ has to continue to make legal arguments. But the press does not have to — indeed, should not — limit their rubric for what’s going on to the law.

      I agree, the 11th C may decide this quickly. We shall see.

  11. Njrun says:

    I think this is spot on, but it also is the reason I asked in another post about why anyone connected twith Trump would ever tell the truth and incriminate him. Given that lying has almost universally been rewarded, even under oath anyone hired by Trump has to make the logical decision that they are better off not cooperating with the DOJ.

    This kind of calculation isn’t new. Late 1980s, a bunch of NJ state troopers were charged with planting drugs on and mistreating black motorists (mostly those who complained about bogus stops). Long story short, they were all acquitted over the course of several trials (at which the former head of the division testified for defendants as a character witness). In the end, the only trooper to serve jail time was the black trooper who pleaded guilty and testified fruitlessly against his fellow troopers.

      • Njrun says:

        Again, Republicans have faced no consequences for lying to courts for many decades, it’s not just about Barr or even the federal government (going back to my example about NJ, which has a very fair court system).

    • DrDoom says:

      That case is an instance of prisoner’s dilemma, and according to game theory, the pleading trooper has the greatest chance of a good outcome. But even game theory does not claim that in every iteration of the game, such will be the result. In any given single instance, the best strategy will not necessarily win the day. Some poker hands are won by players drawing to an inside straight.

  12. Savage Librarian says:

    “But a lot, too, depends on commentators continuing to treat this as a good faith legal dispute when instead it’s just more manufactured conflict.”

    That sums it up well. That kind of conflict sticks around for years, too. It really messes with the historical record.

    Some media is in the same camp as Cannon. Others apparently have no qualms about being bamboozled. But some actually can see through the garbage. They just don’t have the wherewithal to speak up. The best journalists and commentators lay it all out. Thank goodness there still are some of those. And you, Marcy, are the crème de la crème.

    • Ginevra diBenci says:

      SL, you are correct: No one (and nowhere) else covers this turf with anything like Dr. Wheeler’s knowledge, insight and tenacity.

      I did want to mention, however, that Liz Dye at Wonkette (formerly Five Dollar Feminist) not only summarizes the legal issues beautifully, she also gives EmptyWheel a shoutout in almost every column on these topics. I only wish more “legacy” journalists would do the same.

  13. Derek says:

    Looks like you are finally starting to get it. Perhaps we can be spared any further piety on “due process”.

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    • bmaz says:

      Hi there. First off, you will need a far differentiated screen name than “Derek”. Secondly, you clearly have no clue about due process. How often are you in a court? Is it perfect? No. It never was. Is it real? Yes, still. So chew on that piety. And make sure to announce your new screen name so people know who they are dealing with.

  14. KAL says:

    Ms. Wheeler, This commentary is vividly clear, and scares the bejesus out of me. Many of your posts are a bit above my comprehension because I am not a lawyer, a political analyst or in academia. But, bit by bit, I am learning. Today, I got every word. Thank you for your commitment to the truth, and spreading that truth.

    [Welcome back to emptywheel. Please use a more differentiated username when you comment next as we have several community members named “Kal” including one who popped into this thread. Please use a minimum 8 letters to make your name sufficiently distinct. I’m sorry this hasn’t been asked of you sooner but we may have mistaken you for another member. Thanks. /~Rayne]

  15. joel fisher says:

    Presumptuous of me to offer advice, but
    “Narrative of Grievance”
    sounds like a good title for your inevitable book.

    Or, maybe,
    “Trump: Narrative of Grievance”.

  16. waban1966 says:

    This all seems exactly right. Which it what makes it all about litigation speed just on the stay. Forcing the issue to SCOTUS. And this is what all the “shadow docket” practice during Trump’s tenure has been about. Stay any order against Trump, and dissolve any stay of rulings in Trump’s favor. It left policies even with very weak legal justification in place for long periods of time.

    As for delay to use delay to get to raw “power” (the “get me to Jim Jordan strategy,” exactly what they are doing), the only card to play for rule-of-law advocates is to do everything possible procedurally and with speed, to put judges in position to decide on the record. Part of the shadow-docket SCOTUS practice has been to issue lots of unsigned opinions. Unsigned orders prevent the press from assigning any blame and pointing out illegitimacy.

    I am surprised that DOJ hasn’t filed any “motions to expedite,” but they could be waiting for a ruling that really delays things, and then make such a motion in whatever the reviewing court is at that time.

  17. Bittersweet says:

    In order to claim each document has been declassified, would they need to name each document individually, name, date declassified, etc? If Trump doesn’t tell them what he took, then are their hands tied? So is the refusal to tell the Special Master what is declassified simply because they have no idea and need to look at them each to make (up) that list?

    • Silly but True says:

      There are two things that generally get conflated: the subsequent declassification of classified Presidential records held by former Presidents (or their libraries) vs. POTUS “real time” declassification

      The (quote)”_normal_”(unquote) process has seen classified Presidential papers traditionally located around the country with their various Presidential Libraries. If a decision to declassify comes, it must come through the originally-classifying agency authorized to declassify them. For example, Kennedy’s classified Bay of Pigs papers. At various times, documents held in both CIA as well as Kennedy library have been declassified.

      Presidential Libraries themselves hold on excess of 30 million pages of textual classified materials. More than 1,000 rolls of classified microfilm is held by Presidential libraries from Franklin Roosevelt Library through George W Bush Library. More than 3 terabytes of classified electronic records are held by the various individual Presidential libraries.

      Often, authors and journalists request declassification of these materials to write on story, or to support its importance to public understanding.

      This is quite different from Presidential “real-time” declassification powers, which we’ll be getting into a deep dive in this case soon enough.

    • SMF88011 says:

      As someone that has actually handled numerous classified materials over the last 30 years and have been an Authorized Derivative Classifier, I can tell you that these documents were never declassified no matter what they are saying. There are numerous requirements when it comes to declassifying things (that Presidents need to follow along with anyone else) and one such thing is notifying the classifying agency that something is declassified. If they haven’t been told that it has been declassified, it never was.

      In this case, Trump got caught stealing classified documents. He thought he was above the law and anything he wanted was his to keep no matter what the law stated.

      • joel fisher says:

        Didn’t TFG disclose Israeli secrets to the Russians in an Oval office meeting and wasn’t there some discussion of the President’s declassification powers at that time? Pretty broad; no paperwork.

        • Yorkville Kangaroo says:

          The discussion would have centered around a President divulging material like this either unconsciously or, in The Donald’s case, VERY consciously (though probably without realising its import). Once the information is ‘in the wild’ it ceases to be Classified.

          However, that doesn’t mean the documents containing that information are miraculously declassified unless that is the very thing that was divulged.

          In other words, if I say that we have a photo of Putin molesting a yak then the fact is no longer Classified but the photo very much is.

  18. punaise says:

    via DKos:

    There’s one other big thing to note concerning the reply by Trump’s attorneys: Threats. Almost every paragraph of the reply drops Cannon’s name or makes reference to how Trump’s team doesn’t believe that what Dearie is asking for fits with what Cannon wanted.

    In short: Trump picked Dearie because Trump assumed Dearie would also be angry at the FBI and ready for revenge.

    Cannon picked Dearie because Trump picked Dearie. But Cannon’s order also made it clear that she could fire Dearie at any point, and without cause, if it turned out he didn’t suit Trump’s purpose.

    Trump’s team is making none-too-subtle reference to this line every time they reply to Dearie with a claim that he’s asking for something that “the District Court” didn’t require. They want Dearie to toe the line or know that they’ll ask Cannon for him to be canned.

    Based on everything that’s happened so far, there’s a good chance Dearie won’t be there to see this thing to the end. Which will generate more delays. Which is exactly what Trump wants.

    • Robot17 says:

      Yup. Exactly this. Me wonders if there could be some way to bifurcate the various potential charges and indict on some of them and use subsequent indictments on the remainder. Possibly indict in DC and remove it from Cannon’s purview? Dunno.

    • Peterr says:

      Cannon picked Dearie because he was the one name of the four suggested by both sides that both sides told her they would be happy with.

      • punaise says:

        That’s the most benign reading of it, even if factual. Has it not been established or at least credibly inferred that FedSoc-groomed and Trump appointed Cannon is putting an Even Cowgirls Get the Blues-sized thumb on the scales?

      • timbo says:

        Maybe Cannon picked Dearie because, of her choices, he was the least likely to complain if she overrides his rulings as Special Master…when/if Dearie’s decisions aren’t in Team Twitler’s favor.

      • earlofhuntingdon says:

        Yes, and no harm, no foul (from Trump’s perspective), if her plan was always to fire and or over-ride his calls. Keeps the DoJ busy, makes her look judicial (in the manner of lipstick on flying whatever), and keeps balls in the air that might otherwise plop on her desk or that of the 11th Cir.

    • PeterS says:

      Is there a more benign explanation? Trump’s attorneys know they have to say something on behalf of their client and can’t think of anything better than what Cannon came out with; she was a better legal advocate for Trump than his own people.

      And of course lawyers always like to quote from a decision that has gone their way.

      (Ditto for what is filed before 11th Circuit)

    • harpie says:

      Random observation:

      1] TRUMP Team says they do not trust the Government’s statement that the docs are classified. [pdf22/40]

      Also 2] TRUMP Team contends that we must just trust that TRUMP properly “categorized” and “filed separately” personal records from Presidential records. [pdf25/40]

  19. Kal Kallevig says:

    Someone named KAL posted above; it was not me although that is normally how I refer to myself.

    Just wanted to clear that up, if anyone cares, but also, I would have been happy to say the things that KAL said.

    Kal Kallevig

    [Thanks, Kal. You’re one of the examples I need, I hope you don’t mind. Community members must have names which are differentiated enough that they can’t be mistaken for another member. I’ll add a request to KAL’s comment for future differentiation so their future remarks aren’t mistaken for yours. /~Rayne]

      • harpie says:

        Klasfeld 2:16 PM · Sep 20, 2022

        Trusty wants to have a look at all the documents.

        Judge Dearie summarizes him as saying he doesn’t know now whether their will be a real dispute over the docs.

        Gerstein 2:17 PM · Sep 20, 2022

        Judge asks Bratt about what to do with classified docs if 11th circuit doesn’t step in. Defers to Edelstein, who say govt will ‘most likely…consider other appellate options at that point.’ I think only option is #SCOTUS.

        (Before the hearing, the judge pressed them previously to disclose declassification arguments with specificity.)

      • harpie says:

        Klasfeld 2:19 PM · Sep 20, 2022

        Big from Dearie:

        He presses Trump’s lawyers on what he’s supposed to do. The government provided “prima facie evidence” of classification, ie, the markings.

        “As far as I’m concerned, that’s the end of it.”

        To be clear, in saying “that’s the end of it,” Dearie wasn’t issuing a ruling. He’s pressing Trusty on why that shouldn’t wouldn’t end his calculation.

      • harpie says:

        Gerstein 2:27 PM · Sep 20, 2022

        Trusty stands by position that they don’t want right now to detail what may have been declassified or when. ‘We’re not in a position nor should we be in a position at this juncture to fully disclose a substantive defense’


        Again, they’re civil litigants, not defendants.

        Gerstein 2:30 PM · Sep 20, 2022:

        Trusty ‘We should not be in a position to have to disclose declarations, witness statements.’

        Dearie: ‘My view us you can’t have your cake and eat it too.’

        • earlofhuntingdon says:

          It is funny. How on earth could Trump have confused his role – and obligations – as a civil plaintiff, with his rights as a criminal defendant?

          Could it be a Freudian slip? Are his lawyers not doing their legal job – as opposed to holding hands with a client who has yet to pay them? Or is it more fertilizer for his bumper crop of victimhood? Inquiring minds and all that.

      • harpie says:

        Cheney 2:42 PM · Sep 20, 2022:


        Gerstein 2:43 PM · Sep 20, 2022

        Judge says he hopes he can resolve matter w/o seeing the classified if possible. Edelstein emphasizes that some on prosecution team don’t have the necessary clearances.

        Trusty: ‘It’s kind of astounding to hear the government say the president’s lawyers don’t have a need to know.’

        Marcy 2:45 PM · Sep 20, 2022

        Well, you see, @TrustyLawyer, you’ve actually summarized this nicely.

        The PRESIDENT’s lawyers do have the Need to Know.

        The former President’s lawyers do not. Not even YOU have argued that’s included under PRA.


      • harpie says:


        Cheney 2:46 PM · Sep 20, 2022:

        … And the hearing has ended. Stay tuned for my hard-hitting roundup of the 90 audible seconds of pleasantries and farewells between the parties and what it means for the Mar-a-Lago investigation.

      • pdaly says:

        Thanks for all the links, harpie. That was helpful to hear several takes on today’s hearing, and I was able to find the thread unroll for each before Twitter blocks continued unregistered Twitter user scrolling.

  20. Scott Rose says:

    Trump’s strategy of delay may wind up working against him politically.

    Biden was elected with significant help from a lot of lifelong Republicans including people like Senator Jeff Flake, Governor Kasich, Governor Ridge, Governor Todd-Whitman and on and on.

    Many of those Republican Biden voters and their corresponding “man-and-woman-in-the-street” likeminded voters in 2020 voted for Biden, but for down ballot Republicans.

    It could just be that the rise of Marjorie Taylor Greene and MTG-like candidates, combined with 1) the insurrection, which happened after the 2020 election; and 2) Trump’s profoundly irresponsible conduct surrounding classified documents; and 3) the behavior of, say, Congressman Mike Turner in defending Trump’s indefensible classified-documents-related conduct, will cause the Flake-Ridge-Todd-Whitman type of voter to vote for Democratic Senate and House candidates in 2022.

    To state it another way, I don’t see Trump’s willful retention of classified documents, combined with Turner’s attempted defenses of Trump, helping Mastroiano, Oz, or Fitzpatrick to get the votes of voters like Tom Ridge.

  21. KOOTO (Keen Observer Of The Obvious) says:

    I watch MSNBC, and have seen their consultants; a collection of former federal prosecutors, DA’s and constitutional lawyers, saying “according to the law, here’s what is going to happen next”, while I knew full well it wasn’t. As you say, Trump has been playing the power game, not the legal game, and has corrupted the legal system in a multitude of ways to build the power he needs to make sure he could keep on doing whatever he wants. It only works because others are so enthralled by increased power, his and hopefully their own, that they cooperate.
    People think Trump is dumb, and he is if you measure by the standard measures of civilized people. But he is not playing the civilized people game, he is playing the “if I have enough power, I can fuck you over” game. And he has been doing pretty well at it.

    • Yorkville Kangaroo says:

      Actually, he is NOT that smart. He is a one-trick pony but it’s a good trick and he was taught it by Roy Cohn and the only reason he had Cohn was because he worked for daddy. Deny, delay, obfuscate, counter-sue, string the claimant/law enforcement agency/congress along as long as possible, attempt to settle. He’s using all the rules of our currently screwed up and litigious judicial system.

      This works well in civil matters and it’s what he’s doing here. But some are getting smart. DA SDNY is now suing and (political or not) will be unlikely to accept any settlement short of a LARGE sum of cash and disqualification in the state of NY from holding any corporate role for five years.

      Of course, if he has to, he’ll take the settlement in order to stave off the inevitable. It’s what he’s done twice before wiy=th Trump U. and the Trump Foundation.

      The more hazardous stuff is about to come and those tactics don’t necessarily fly though that’s what his minions are attempting here.

      I may have to buy a BIIIIG screen TV to watch it.

    • Just Some Guy says:

      Once again, Kentucky’s Attorney General, the barely-qualified Daniel Cameron, wastes money and time with an amicus brief that has no bearing in reality, and that is entirely just right-wing grievances in legalese.

  22. pdaly says:

    The hypothetical plea deal that Marcy mentions above

    “maybe even agreeing to the probably unconstitutional part of the law that would prohibit him from running for President again, in exchange for removing the more serious 18 USC 793 and 1519 charges”

    and that she predicts that Trump would not likely take would also, according to the following article, not have a guaranteed enforceable penalty on Trump if he were to renege. So let’s skip the idea of plea deals, I guess.

  23. Frank Probst says:

    Sort of off-topic: Following the Dearie hearing on The Twitter (@joshgerstein). It’s amazing to see his number of followers shooting upward as the hearing goes on. A good lesson for us old people who aren’t big on social media.

  24. WilliamOckham says:

    If anyone ever had any doubt about whether Trump’s lawyers were pursuing a legal strategy, one statement made in today’s hearing should remove all doubt.

    Jim Trusty told a vicious lie about the National Archives in the hearing. Everyone in the courtroom knew it was a lie and irrelevant to the proceeding the moment it came out of his mouth. And everyone knew that the purpose of the statement was to inflame Trump’s followers. That’s not a vigorous defense. That’s a lawyer being a willing participant in the destruction of the rule of law and what’s left of American democracy.

  25. Teri says:

    I don’t believe that “Our client tells us he declassified it all,” wouldn’t actually work as evidence to counter the prima facie case made by the government because it’s still out of court hearsay, and I don’t see it coming in as an exception, particularly because the judge asked for specific information regarding classification.

    As you said, this is particularly true because his lawyers are not in a position to know.

    Making a declaration like that would likely be used against him later in a criminal proceeding because it would no doubt contain provable lies. It also raises the question, in a criminal court later, why he didn’t mention earlier that he declassified everything. The less a potential defendant says the better, which is why this whole thing was a big gamble.

    P.S. Your work is consistently excellent. Thanks.

    • Teri says:

      adding: Dearie asked for the plaintiff to offer specifics regarding classification. So a general affidavit from the lawyers wouldn’t work. It has to be from Trump and it has to be specific, which (it seems to me) he really can’t do.

      again, I really appreciate your work.

      • earlofhuntingdon says:

        Yes, it looks as if Dearie is not going to accept the crap from Trump’s lawyers that Cannon is wallowing in. Dearie wants affidavits from Trump, supporting specific assertions, that are important to Trump’s meeting the plaintiff’s burden of proof. He’s not going to accept the shoulda, coulda, wouldas Trump is famous for.

        One more reason Cannon is likely to replace him with a Trump hack, or do the hacking herself.

    • Thorvold says:

      I think the problem is that Trump’s lawyers don’t know what documents were seized because Trump probably did not keep any sort of document inventory. They can’t generate a log by themselves that says “Document titled X was de-classified on Y date” because they don’t even know what documents to list.

      If they take Trump’s word for it, and name a document that is not in the seized materials, that would potentially be evidence of distribution (implying he gave it away since it is gone)

  26. Arice says:

    Well described and written, Marcy. Everything Trump does reminds me of the Medellin cartel’s “legal strategy,” which was to kidnap hostages to delay extradition and to then to bribe the M-19 guerrillas to burn attack and burn down the Colombian supreme court and kill a majority of the justices. Trump’s attack on American justice isn’t quite as frontal or literal, yet, but serves a similar goal of sowing confusion, delaying due process, and destroying evidence at every turn.

  27. Susan D. Einbinder says:

    There has been discussion about the DOJ taking this to a court in DC which would, I think, effectively remove it from the current court. Can that still be done? And if so, why hasn’t it been? It’s so demoralizing to see, yet again, Trump evade accountability for unacceptable behavior (that is classified as illegal and deserving of punishment).

    • Yorkville Kangaroo says:

      bmaz has argued this since day 1.

      It’s probably evidence that Garland is wanting to maintain the appearance of ‘even-handedness’ to remove blowback from the alt-right partisans.

      Having said that, if he IS doing that he’s on a fool’s errand because it’s coming no matter how he plays the game.

  28. The Old Redneck says:

    There’s an old saying that legal training sharpens the mind by narrowing it. I think this applies here: commentating lawyers are taking a blinkered, maybe even niave view of this case. They’re talking about what should happen under existing law. Meanwhile, Trump is playing a long game which has nothing to with precedent or coherent legal arguments. And his backup plan if he can’t delay this into oblivion is sedition: that is, encourage riots and insurrection by his supporters.
    Trump is dangerous and should not be underestimated. Furthermore, his lawyers understand the strategy and are carrying it out.

    • bmaz says:

      Yes, sure, you wouldn’t want people that actually practice law talking to you about legal things, that would be naive and blinkered! Lol.

    • earlofhuntingdon says:

      Your comment mirrors the caution expressed by Marcy in this post, except for your introductory and gratuitous dissing of the legal research and analysis that makes this site work. You can’t have your cake and eat it.

      • The Old Redneck says:

        I have no quarrel with the legal analysis here. It’s one of the things I value most about this site. All I’m saying is that you can’t look at Trump’s legal moves from that narrow perspective only. In that respect I agree with Marcy.
        By the way bmaz, I’ve been a trial lawyer for 30 years.

  29. matt fischer says:

    Per Daniel Barnes:

    A three-judge panel of the 11th Circuit has granted DOJ’s motion for a partial stay, allowing them to continue using classified materials seized from Mar-a-Lago as part of their criminal investigation.

    • Yorkville Kangaroo says:

      Burning question:

      Now that this particular panel has determined this particular thing will they remain the panel to review anything coming from Cannon and this docket or will new issues need to be decided by an otherly constituted panel?

Comments are closed.