How Trump’s SCOTUS Appeal Shows Why He’s Got a Weaker Legal Argument than a [Former] Gitmo Detainee

Trump has appealed the part of the 11th Circuit’s decision that ruled DOJ did not have to share classified documents as part of the Special Master process. Trump did not appeal the part of the decision lifting the stay on using the classified documents as part of the criminal investigation.

The parts of this pertaining to classified documents and Presidential authority are even more of a shit-show than the 11th Circuit response was, and for an audience that has actually considered these issues.

But parts of it are jurisdictional and would not be frivolous if this were simply a discovery dispute (as Chris Kise treats it), and not one pertaining to classified information. But it does pertain to classified records.

And that’s why I think this is the most important part of the argument. Trump attempts to dismiss the government’s argument that it could appeal Judge Cannon’s order that it share classified records with Judge Raymond Dearie and Trump.

In its reply before the Eleventh Circuit, the Government made a fleeting statement that orders to disclose classified information are immediately appealable as collateral orders. App. F at 10 (citing Mowhawk Indus., 558 U.S. at 113 n.4; Al Odah v. United States, 559 F.3d 539, 542–44 (D.C. Cir. 2009)). This assertion is without merit.


In Al Odah, the Government appealed from an order granting defendant’s counsel access to unredacted “classified” information. 559 F.3d at 543. The District of Columbia Circuit, applying the Cohen test, determined it had jurisdiction to hear the appeal of the collateral order in that case. Id. at 543-44. However, the present case is distinguishable from Al Odah, primarily due to whom the “classified” or “privileged” documents are being disclosed. Unlike in Al Odah, where the unredacted classified documents were ordered to be disclosed to defendant’s counsel, here the materials in question will be provided to the Special Master—a Senior United States District Judge with years of FISA court experience. As Special Master, Judge Dearie will effectively act as an arm of the District Court. It can hardly be suggested that Judge Dearie’s review of these records is in any way akin to dissemination of previously unshared, unredacted, classified information to counsel for Guantanamo Bay detainees.

Additionally, the fact this dispute involves potential Presidential records14 creates a fundamental and significant distinction. Since any purported “classified records” may be Presidential records, President Trump (or his designee, including a neutral designee such as a special master) has an absolute right of access to same under the Presidential Records Act (“PRA”). 44 U.S.C. § 2205(3). Accordingly, President Trump (and, by extension, the Special Master) cannot in any event be denied access to those documents. Given this absolute right of access under the PRA, there is therefore no valid basis to preclude such review. Moreover, there cannot possibly be any valid claim of injury resulting from a statutorily authorized grant of access to a former President and/or his designee.

The Government argued on appeal, without explanation, that showing the purportedly classified documents to Judge Dearie would harm national security. App. D at 17. However, in seeking to stay the Injunction Order pending appeal, the Government then argued it needed to use those same documents to interview witnesses and submit to the grand jury. ECF No. 69 at 17. These positions cannot be reconciled.

14 Even the Government’s own Motion for Stay in the Eleventh Circuit acknowledged the obvious, that any purported “classified records” may be Presidential records. App. D at 10 [my emphasis]

At first, Trump argues that Cannon has not ordered DOJ to share classified records with anyone but Dearie. That’s false: She ordered DOJ to share classified records with Trump’s lawyers.

In fact, in the very next paragraph, Trump admits that Cannon’s order is worse to that in Al Odah a DC Circuit case decided per curiam by a panel including Merrick Garland. Fawzi Khalid Abdullah Fahad Al Odah was a plaintiff in a habeas petition — as an enemy combatant he hadn’t and never was charged with a crime — but he was challenging indefinite detention with inadequate due process. By comparison, Trump has not been charged and if and when he is charged, his lawyers will get to see the classified evidence against him. For now, he’s just a plaintiff and the record is uncontested that the warrant executed on his beach resort involved no gross abuse of his rights.

Without acknowledging that the claim Cannon only ordered DOJ to share with Dearie is false, Trump makes the argument that DOJ should have to share with Trump’s designees under the Presidential Records Act. As DOJ has already noted, of course, that’s only true of the records are where they are supposed to be: In the possession of the Archives. They’re not, and that’s part of the problem.

Another part of the problem is that, elsewhere in this appeal, Trump unquestioningly invokes EO 13526, which governed classified information for the entirety of his term and still does. As I’ve noted, that explicitly says even former Presidents must get waivers of Need to Know requirements to access classified information. Trump never changed that order before he became a former President.

In the next paragraph, Trump then complains that DOJ might complain about sharing all of this information with Dearie (and Trump’s lawyers) but might decide to share some of the information with witnesses. Again, elsewhere in this appeal, Trump unquestioningly invokes Navy v. Egan, which is the Supreme Court precedent that says the President — not the former President — gets to decide who needs access to classified information or not.

And nowhere in this argument do Trump’s lawyers admit something that DOJ laid out explicitly before the 11th Circuit: At least one of them, Evan Corcoran, is a witness or possibly even a co-conspirator (DOJ referred to his lawyers, plural, as potential witnesses, suggesting Lindsey Halligan (who was at Mar-a-Lago during the search) or Jim Trusty has had a role in the obstruction process as well. Of course, Trump also neglects to mention the obstruction part of the investigation, which makes all documents with classification marks proof that Trump defied a subpoena.

In other words, Trump is even more poorly situated than Al Odah, who at least had lawyers uninvolved in his potential security concerns. The only one of Trump’s lawyers who’s definitely not a witness, Kise, is also the one who recently was a registered agent of Venezuela.

As I keep saying in this matter, no one really knows how any of this will turn out. Trump’s argument that Ginni Thomas’ favorite President is no Gitmo detainee surely will work with Clarence, who will decide whether to take this appeal (or ask the entire court to weigh in). But along the way, Trump has compared himself unfavorably — legally, at least — with a former Gitmo detainee.

Update: This tweet thread from Steve Vladeck notes that Trump never describes what irreparable harm he faces if Dearie can’t review the classified records now.

Update: One more thing Trump doesn’t tell SCOTUS: That Judge Cannon has altered her own order, taking the classified documents out of it altogether, which makes Vladeck’s point about emergency relief even more hysterical.

Update: Justice Thomas has given the government a week to respond, which suggests even he doesn’t see this as the emergency it would have to be for SCOTUS to get involved.

70 replies
  1. Rugger9 says:

    If the idea is to delay, why risk SCOTUS turning his claim down? Either Individual-1 ‘knows’ the SCOTUS is in his pocket, he’s panicking about what’s there to be found or he’s starving for attention. Otherwise, TFG is throwing away weeks of delay if SCOTUS smacks down Cannon.

    While Gorsuch is a reliable social conservative and antediluvian on labor issues, he has the reputation of being strict on court process, and along with Roberts will make a 5-4 decision possible.

    Note that Individual-1 is already in the news for personally filling the boxes (undercutting the idea that he didn’t know what was in them) with more than the usual secrecy. Even accounting for the fact it’s rumor-monging book excerpts there’s a lot of stuff to talk about. The threats are an additional sign that TFG is scared. Boo hoo hoo…

    • Silly but True says:

      The goal is soften the espionage risk, which SCOTUS ruling for would do, while ruling against / turning it down yields the status quo.

      If Trump eventually devolves extent of criminal liability to simple Presidential records, not espionage, risk, then that plays into his narrative better than stealing US nuclear secrets on front page every day.

      Goal is to claw back everything within Cannon’s domain, and then she can give everything back. That becomes more cumbersome the more DoJ can cleave off the seized documents.

    • Gee says:

      Perhaps Trump doesn’t see this as very risky at all. I rather think that he knows Thomas is in hand, and must think from there that with Kav, ACB & Alito will surely let Clarence run with it himself while Sotomayor, Jackson and Kagan are absolute overrule. That’s a stalemate 3-3, leaving Roberts, Gorsuch, and uhhh, wait, Thomas???

      So what does Trump have on Gorsuch? What got him on to the court? Trump appointed him, so he could be partial to making Trump happy. I’m not going to speculate about any potential blackmail, but Kav cannot be trusted, and much of the court is viewed as illegitimate, so anything seems possible when you have the likes of Alito hanging around making all sorts of crazy arguments. So it’s just Gorsuch that matters, but perhaps not, because Roberts always finds a boring rationalization for doing nothing useful but sounding like he is really concerned that the court does the right thing.

      But the thing is, if only one of the two lets Clarence have his way, then I think it’s another stalemate 4-4 and Clarence takes it and you can pretty much rest assured he will do whatever he possibly can to protect Trump because protecting Trump is protecting Ginni. (IANAL, someone help me here, does overrule require 5-3 minimum and Clarence is left out?)

      [FYI – just a head’s up that we are moving to a new username standard requiring a unique combination of minimum 8 letters. Plan your next comment accordingly. /~Rayne]

      • Wajim says:

        8 letters. Does that mean my handle, “Wajim,” needs to be revised, or is this policy only for new posters going forward? Happy to do it, if need be, but, as always, I seek clarity

        [Thanks for asking. It will apply to everyone except the site’s owner/contributors/moderators because their accounts are generated differently than commenters’. The primary problem is spoofing by trolls; a long-established trusted user can be spoofed by a troll making it difficult to tell which one is the authentic user. When long-timers change their names, their previous name will be watched more closely for spoofing. Thanks again. /~Rayne]

      • SelaSela says:

        Theoretically, judge Thomas alone can decide on the application. It is his choice whether to refer it to the full court, or act on his own without involving any other judge.

        I don’t think even Thomas would do it in this case. but he can.

        [Thanks for updating your username to meet the 8 letter minimum. /~Rayne]

    • Aroundight says:

      I don’t think the idea is to delay. I think that the idea is convince Trump that his lawyers are fighting for him even though they know that this isn’t really going to accomplish anything.

      • Ginevra diBenci says:

        Agree. This is Kise’s attempt to prove he’s fighting for “President Trump”‘s interests. The brief was written for Trump to read, and while he’s surely skimmed the legal parts, his eyes will light up when he gets to the end and finds “declassification” treated as if it were a real thing. He will surely miss the fact that even here no one says the declassification occurred, or that it would have made no difference if it had.

  2. OldTulsaDude says:

    Trump has asked the SCOTUS to intervene-and I bet 5 of those justices will appeal that decision to God.

  3. Peterr says:

    The phrase “Need to Know” does not appear in Trump’s filing, save for three appearances in the appended documents (once in the 11th Circuit opinion and twice in DOJ filings). This phrase is central to any circulation of classified materials, as Dearie well knows. Dearie also know that he doesn’t need to know the contents of any documents marked classified in order to do his job and declare that these are government documents that (a) belong to the government, (b) should have been turned over to NARA on January 20, 2021, and (c) were being illegally held at Mar-a-Lago in violation of federal law.

    Trump doesn’t understand that this phrase points to a critical flaw in his appeal, and he has no right to know with respect to these documents. Period.

    • Rugger9 says:

      It’s also a SCOTUS majority bloc willing to overlook actual video evidence to engage in the judicial activism they claim to abhor (Kennedy). However, as a matter of law you are quite correct but it’s clear the FedSoc clique has decided to do what is needed to cover up to keep power. Even this SCOTUS has limits (the 8-1 against TFG on another key element), but I see Thomas, Alito, ACB and Kavanaugh doing TFG’s bidding. I don’t think Roberts goes along and hope Gorsuch will also follow Roberts and the liberal wing.

      I note that the Oath Keepers trial might be unnerving since they’ve signaled that they were doing the insurrection under orders from Individual-1 and therefore were blameless. It’s an excuse that didn’t work at Nuremberg and shouldn’t work now. However, it would be extremely inconvenient for a campaign to pretend Individual-1 didn’t do anything wrong if the OKs say he ordered them into the Capitol as part of a plan.

      Has NSA cracked the missing USSS texts case yet?

      • Marcy Meldahl says:

        Speaking of cracking the case, does anyone know yet who left the bombs at the DNC and RNC on January 6?

  4. BirdGardener says:

    First, thank you for posting this, and posting it so swiftly! I always find your analyses helpful.

    Second, I’m having trouble with the first part of this sentence: “Without acknowledging that the claim Cannon only ordered DOJ to share with Dearie, Trump makes the argument…” Does ‘that’ need to be removed, or is it referring to something that’s missing from the sentence? (And isn’t it his own, false, claim?)

    Thanks again.

  5. Arteberry says:

    Trump’s brief also fails to discuss, as every Trump brief has failed to discuss, that some or all of the classified documents may be government records as distinct from presidential records. Trump just ignores the government records category. Trump’s longer range “strategy” is becoming increasingly clear:

    1. Delay, as everyone recognizes.

    2. Try to convert classified documents to Trump’s personal documents by first calling them presidential records (not government records) and, second, relying on the PRA language to say Trump decided in office to categorize the “presidential” records as personal. This, it appears, is why Trump keeps going on and on about having “declassified everything.” He obviously believes (ok, irrationally) this assertion will help bolster his claims that the documents in question ultimately became his personal property.

    3. Similar to item 2, if Trump can get the classified documents in front of Dearie—which is to say in front of Cannon—he can go with the executive privilege canard. Cannon will likely back him up on executive privilege (at least until the 11th Cir. rules on the full appeal) The eventual criminal trial will be handled by a different judge. But executive privilege is another hook to impede the government’s investigation, even if it doesn’t impede the government’s use of the classified documents at trial.

    4. And, of course, this emergency appeal to the Supreme Court demonstrates Trump’s fear that these particular classified documents will be the giant hammer of guilt and horror dropped on him at trial.

    • emptywheel says:

      He doesn’t need to reclaim these docs (though he’d love to do so, surely). To avoid being charged he only needs a judge — Cannon — to rule that his claim he could take classified docs by declassifying them and ruling them person is at least reasonable, which would make charging him under 793e prohibitive (though not obstruction and possibly not 793f).

      • L. Eslinger says:

        At what point does it become impossible for anyone – even Justice Thomas – to indulge the extraordinary legal contortions invented by Judge Cannon (and/or those advising her) and Team Trump?

        Thinking back about the decision from the 11th Circuit, the following came to mind: “…the declassification argument is a red herring because declassifying an official document would not change its content or render it personal.” This, coupled with the fact that Trump and his staff did not create the documents in question and so they are not presidential records, leads me to vigorously SMDH when considering Team Trump’s claims and Judge Cannon’s opinions and actions.

        • quickbread says:

          This is how I’m leaning, too. This whole endeavor feels very parallel to the lost-cause court cases Trump leaned into after the election, and the stupid lost-cause recounts that he battled for in one or two states even though he would have, in fact, needed to flip four states to win, which was basically an impossibility. Perhaps Cannon’s vigorous support is emboldening him that other appointees will follow her lead. It feels fatalistic and futile. In other words, true to form for him.

          Maybe I’m naive and optimistic, but I am hopeful that SCOTUS (minus Thomas and Alito) will not be nakedly partisan like Cannon and that they’ll make an actual effort to weigh the case on its legal merits. Their careers will far outlast Trump’s, and they have their own history to be making.

          Besides, wouldn’t one think that the Federalist Society might see this as a golden chance to liberate the GOP from a politically damaged turd like Trump so that someone more intelligent and cunning, like DeSantis, can take the clear lead?

      • JonathanW says:

        If the aim is to ruin the Espionage Act charge this way, doesn’t Cannon need her rulings to be upheld on appeal? Or would even an initial ruling cause a potential charge to be difficult because the defense could point to the ruling? It certainly appeared that the 11th Circuit wasn’t buying the claim, as it pointed out that the classification status was a red herring. But maybe this appeal to SCOTUS is a way to sound out the feelings at that level?

        Dr Wheeler, I’d love to hear your opinion as to how likely Judge Cannon is to succeed with this approach. Does she actually stand a chance?

        • JonathanW says:

          I believe the answer to this question is very well laid out the most recent post on this site (although I’m sure Dr Wheeler doesn’t get her ideas for topics from little old me!)

  6. Peterr says:

    I am amused by the styling at the front of the filing. The front page is standard:

    Donald J. Trump
    United States of America

    On page two, things get more amusing (emphasis added):

    The applicant in this Court is Donald J. Trump, the Forty-Fifth President of the United States of America (“President Trump”).
    The respondent in this Court is the United States of America (the “Government”)

    Gotta feed the ego, you know.

    • Rayne says:

      I still think this is more than a narcissistic styling but a positioning for future arguments. And with this distinction of the “Government,” he’s also positioning for his grift — poor victim Donald Trump against the mean old deep state Government.

      • BroD_in_Balto says:

        Shouldn’t he be required to identify himself as “Former President Trump”?

        [Thanks for updating your username to meet the 8 letter minimum. /~Rayne]

        • Rayne says:

          LOL I don’t know of any such requirement, but the regularity with which filings supporting Trump refer to him in present tense as president feel as if there’s a style manual for his team.

      • Peterr says:

        I believe “The Government” is boilerplate language whenever the US is a party to a case before SCOTUS.

        • Rayne says:

          Hmm. I don’t recall that being the case in United States v. Nixon, as just one example, and that case was messy as hell because Nixon was referred to as “President of the United States” and the plaintiff was referred to as the “United States” though the word “government” appeared throughout the decision as well.

    • jhinx says:

      “President Trump”

      This is why Trusty and company think SCOTUS will rule in their favor. They’re hoping at least 5 justices don’t check their notes to see who is the current president.

      • Tom-1812 says:

        Watching a clip of “Morning Joe” on YouTube this morning, I noticed Chuck Rosenberg repeatedly referred to “Mr. Trump”. Maybe that will start a trend.

  7. Nick Barnes says:

    This sentence so plainly reveals one of the fatal flaws in the whole argument, it’s hard to believe that the appeal has any good faith to it at all:

    > Since any purported “classified records” may be Presidential records, President Trump (or his designee, including a neutral designee such as a special master) has an absolute right of access to same under the Presidential Records Act (“PRA”). 44 U.S.C. § 2205(3)

    They are arguing that, because the documents *may* be Presidential records, Trump *has* an absolute right of access.

    As I understand it, even if the documents *are* Presidential records (which has not been determined by any court) then Trump would *still* not have any automatic right of access (due to the PRA) if the documents are also classified. As it is, they *may not* be Presidential records, and *may* be (in fact are) classified, so he’s got bupkiss.

    It’s amazing to me that they are even trying this. Shouldn’t they get reprimanded by the court for the sheer front of it?

    • earlofhuntingdon says:

      Marcy discussed this, in part, by noting the chutzpah it takes for someone who has grossly failed to comply with the requirements of the PRA to then seek the protection of its terms.

      Like Trump himself, his lawyers have failed to note that a former president’s access to the records generated by his administration is contingent on several things. Among them are that the records – whether presidential or federal – are and remain the property of the US government. They are to be in the care and custody of the Archivist (or correct federal agency). They are to be handled and stored correctly, appropriate to their level of importance and/or confidentiality. And that the president’s access (and that of his designees) be administered by the Archivist, in facilities controlled by the Archivist.

      Stealing them, keeping them in a basement room at a Florida beach club or in an unprotected desk in an area to which people are randomly admitted, and protecting them as he would used wrappers from a Big Mac, might reduce the president’s right of access, and be crimes themselves. Another issue is that a former president’s right of access to classified documents remains subject to clearance and a need to know, which are determined by the sitting president.

    • Scott Rose says:

      To put it more plainly, the documents marked classified are in fact classified.

      The plaintiff has not even claimed to the court that they are not classified.

      He has no “absolute right of access” to these classified documents.

      Where the pleading asserts that the plaintiff has “absolute right of access” to these documents, it asserts a known falsehood.

    • Operandi says:

      The fact they keep trying to forge a decontextualized PRA clause into a classification-defeating sword after he treated the PRA like toilet paper for 4 years (almost literally in the case of flushed documents) is one of the recurring bad-faith facets of his pleadings that always causes me to grind my teeth in disgust.

  8. earlofhuntingdon says:

    Thomas and Alito might be predisposed to imagine the harm Trump might suffer, if he’s forced by reality into having a temper tantrum. But even Kavanaugh and Gorsuch would have preferred that Trump make an argument about what those irreparable damages would be, were he to experience the angst from someone telling him, “No.”

    Taking this case would not seem to help the radical six do all the systemically radical things they hope to do this term, notwithstanding how earnestly one Best Friend might whisper to another, pillow-to-pillow, “But you have to do something for Him!”

    • Peterr says:

      For those justices who want to do something to help, I think they will decide this emergency request is not the place to do it. Once the full appeal coming before the 11th Circuit is heard and ruled on, the full case will be appealed to SCOTUS at that point.

      If they are going to bail Trump out, I think that’s when they will do it. This emergency request is too filled with holes that it isn’t worth the hassle to try to fix it for him at this point.

      • earlofhuntingdon says:

        Agreed. While some of the Supremes are happy to abuse the shadow docket to serve their ends, there’s not enough there there in this narrow appeal to give Trump much help. The appeal seems more tailored to test the water, and to assuage Trump and keep him in the limelight.

  9. Amicus says:

    Vladeck has it correct, the emergency motion reads as if it is a merits brief arguing a very technical issue of law, and not a claim for relief to prevent irreparable injury. That’s an essential missing piece, or ought to be. And of course, irreparable injury and the lack thereof has been a central problem with this case from the outset.

    Another tell concerning the soundness of the pleading is that reading the motion to the Supreme Court you would not have a particularly good sense of what the 11th Circuit found, and in particular that the court of appeals held as a preliminary matter that Cannon should never exercised jurisdiction over this because Trump could not satisfy the first Richey factor (an abuse of his rights arising from the search) and otherwise had no irreparable injury in having to comply with a lawful search. (Lawyer tip: read the table of authorities early on and search for the cases/authorities cited as a preview of what is coming and what is missing.)

    If I were the 11th Circuit I would be sorely tempted to grant the DOJ’s motion for expedited briefing. Somehow Kise et al. are too busy to file in the 11th Circuit but they have time to go the Supreme Court with this piece of trash.

    Even the technical legal argument concerning the interlocutory appeal of the Special Master appointment strikes me as specious because the September 5 order makes clear the intertwined nature of the orders and that the Special Master (and Trump’s counsel) were intended to review the documents with classification markings.

    • emptywheel says:

      Trump did respond to 11th C. We’re just waiting on DOJ reply, if they’re submitting one. In fact Thomas MAY have given a week for that to play out, which may change the issues.

      • Amicus says:

        Responded yes, but opposed expedition, all the while setting out arguments to the Court that appear better directed to the 11th Circuit, but which don’t address the core problems.

      • stancat says:

        Is there any possible DOJ response that will position SCOTUS to use this emergency petition as a vehicle to kill the entire action on jurisdictional grounds?

        • Amicus says:

          The short answer is “yes,” but I wouldn’t count on the Court doing so. The correct response from the Court ought to be, and may well be that there is no “emergency,” because Trump suffers no irreparable harm from the 11th Circuit stay. Notwithstanding the composition of the Court, this is not an attractive (and certainly not a meritorious) pleading.

          The Court could just issue a per curiam order denying the motion and let the 11th Circuit handle things without addressing the underlying jurisdictional issue.

          And it should not escape the 11th Circuit’s attention that they were lied to. No sooner had Trump’s attorneys opposed expedition of the merits briefing before the court of appeals on grounds that they were busy and needed more time to address these issues, then they turned around and filed 30 plus pages of briefing in the Supreme Court addressing many of the same things they are likely to address in their brief to the 11th Circuit. Practitioners fib (certain ones) a good deal but courts don’t like to have noses rubbed in it.

  10. Robin says:

    I feel like this is all about his written notes on those classified documents. He wants to argue before DEARIE that those notes belong to him as POTUS and are personal. They say things that would incriminate him criminally in bigger crimes. Why else be fixated on getting them back in front of a Special Master?

  11. earlofhuntingdon says:

    Trump seems to have again claimed that he might have declassified one or more of the records he illegally retained and kept at MAL. As usual, he does not say whether he did so or how, or what records were declassified.

    If he did the latter, of course, it would be an admission that he had those records, that he knew they were classified, and took steps – successful or not – to declassify them. Having the records is bad, lying about it and failing to produce them in response to a subpoena is worse. If the courts consider and disagree with his claim that he declassified them, it would be worse still, particularly as he manifestly failed to care for them in the manner required by current law.

    As he did with Cannon, he must be hoping that the Supremes fill in the blanks he left empty, rather in the way he manipulated his siblings into doing his high school and college homework.

  12. paulxu says:

    For an emergency appeal you are suppose to demonstrate irreparable harm.
    You would think that might be difficult, but remember….Bush Jr was going to be irreparably harmed by just counting votes.
    This court is at least as unhinged as that one.

  13. Konny says:

    A question re the second update (“Update: One more thing Trump doesn’t tell SCOTUS: That Judge Cannon has altered her own order, taking the classified documents out of it altogether …”): Doesn’t this render the application to the Supreme Court moot? If the underlying order is not in place anymore?

  14. brooke says:

    This is such a great explanation!

    I just have one question… why does he want so badly for his lawyers to see the classified docs?

    Obv it’s bc he wants them to share that info w him. But why?

    The only reason I can think of is that he wants to know which classified docs they have, which would only matter if he thinks they don’t have all of them.

    [Welcome to emptywheel. Please use a more differentiated username when you comment next as we have several community members named “Brooke” or “Brook.” Your unique username should contain a minimum of 8 letters. Thanks. /~Rayne]

  15. earlofhuntingdon says:

    Trump argues that the “purportedly classified” records, and “likely most of the seized materials” will “indisputably” be governed by the PRA. (p. 31) He ignores the possibility that the materials include federal records, which are not governed by the PRA. Nor does the PRA govern personal records, once they are properly designated as such.

    Trump claims the PRA accords the president “extraordinary discretion” to classify “his” records as personal or presidential. That’s not true. The PRA provides requirements that must be met to designate a record as personal. Trump implies that requirement does not exist, and that he can make any record “personal.” He might, for example, make notes on it. That might create a separate presidential record, or constitute the defacement of a public record, but it’s insufficient on its own to make it a personal one.

  16. Notyouraveragenormal says:

    The more this goes on, the more I think it’s Trump trying to normalize the narrative in the public domain, such that when the reveal comes, no one is shocked by it any longer. Delay, obfuscation, confusion are all key to the slipperiness and tiring dripfeed. While there might at some time need to be some substance to his filings, he is not in court and his audience remains extra-judicial.

  17. Nick Barnes says:

    If any court (and especially SCOTUS) accepts this incredible bullshit about “Trump may have declassified X”, presumably that opens the floodgates for defense motions in any classified documents case.
    “We caught you literally selling these documents to the Russians!”
    “Ah, but maybe Trump declassified them without telling anyone. You can’t prove they’re classified. Neener, neener.”

  18. bradpevans says:

    In “Trump logic”, he was President, so Presidential Records are his – duh! He could have declassified, so treat them as such. In reality, I suspect *no one* on team Trump knows the totality of the seizure, so any way to get docs back (or copies of same) better prepares his team.

  19. JonathanW says:

    I’m a little confused about how the PRA works relative to classified information in the first place, under “normal” circumstances (say with former President Obama):

    1. Is it typical that classified documents are presidential records vs records belonging to agencies, and hence potentially stored in a presidential library?
    2. Typical or not, in a normal situation, if a classified presidential record is in the archives, does the current president control access via “need to know” designations?

    Assuming that the answer to 2 is “yes”, then how can Trump possibly imply that he has unfettered access to all of his records including the classified ones?

    • earlofhuntingdon says:

      I don’t think in practice it is normally that hard to distinguish between presidential and agency records. Then comes whether a record is classified and at what level, for which there is also a standard protocol. So, too, for the normal process to declassify something (more rarely done). And under the PRA, it’s normally not that hard to determine whether a document is personal.

      He also knows that normally, a former president’s access to records of his administration comes by and through the Archivist, which mediates when, who, and how that access is executed.

      What’s abnormal is Trump. He simply refutes that rules apply to him. He is making unprecedented and factually and legally unsupported claims because he knows he violated several laws, and, as usual, wants not to be held accountable for it.

          • puzzled scottish person says:

            Will a Scottish person with a couple of big old book-type dictionaries do?

            My trusty old Chambers English Dictionary (7th ed., 1988) says ‘refute’ (v.t.) means: to disprove: loosely, to deny.

            And my much newer Collins English Dictionary (11th ed., 2011) says ‘refute’ means:
            1 to prove (a statement, theory, charge, etc) of (a person) to be false or incorrect; disprove
            2 to deny (a claim, charge, allegation, etc)

            So in English English, at least, to deny would seem to be an acceptable usage these days.

            Americans might differ, of course.

            So, yes, I think it has come to mean ‘deny’.

            • earlofhuntingdon says:

              A humorous angle is that a “pedant” might have looked it up, as you did, along with the definition of “own goal,” while a “pendant” is just hanging around. But Trump has us all a little on Edgcumbe.

    • Glen Dudek says:

      IANAL, but this is an interesting question. § 2205 of the Presidential Records Act reads: “Notwithstanding any restrictions on access imposed pursuant to sections 2204 and 2208 of this title— … (3) the Presidential records of a former President shall be available to such former President or the former President’s designated representative.” This does suggest that Trump or his representatives have the ability to have access to even classified Presidential Records. “Shall be available” isn’t ownership or control, of course. Is there someone here who can say with more certainty than I have that the incumbent President can or cannot restrict access to classified Presidential Records from a former President’s administration to that former President?

      • earlofhuntingdon says:

        No, Trump’s position is farcical. It’s not reasonable because the PRA requires that presidential records be delivered up to the Archivist, not taken to a basement storage locker in Florida. Access to them is under the supervision of the Archivist. The PRA must also be read in conjunction with other rules, including E.O. 13526, which govern access to classified records

        • Glen Dudek says:

          Thanks for the reply, earl – I agree Trump’s position is farcical, I was pondering the theoretical right of access by a former President to classified Presidential Records under the control of the Archivist, not the ability for Trump to steal them and keep them, and not the ability for Trump to mischaracterize Government Records as Presidential Records. I hope you are right that E.O. 13526 would override the access granted in §2205, but that seems like the kind of conflict lawyers argue and judges rule about.

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