Before SCOTUS, DOJ Argues Trump Has Shown No Harm

DOJ offered about a jillion jurisdictional reasons why Trump’s appeal to the Supreme Court should fail (I’ll circle back and catalog them in a bit). Because Trump’s was largely a jurisdictional complaint (arguing that the 11th Circuit did not have jurisdiction over the scope of the Special Master review), that’s the meat of the legal issue if SCOTUS decides to review this.

As they note, SCOTUS doesn’t even have to reach that issue because Trump has made no compelling argument that he will be irreparably injured unless SCOTUS intervenes to force DOJ to share highly classified documents with Special Master Dearie and Trump’s lawyers.

Most notably, applicant has not even attempted to explain how he is irreparably injured by the court of appeals’ partial stay, which simply prevents disclosure of the documents bearing classification markings in the special-master review during the pendency of the government’s expedited appeal. Applicant’s inability to demonstrate irreparable injury is itself sufficient reason to deny the extraordinary relief he seeks in this Court. Indeed, applicant does not challenge the court of appeals’ determinations that applicant will suffer no meaningful harm from the limited stay, App. A at 27-28; that the government would have been irreparably injured absent a stay, id. at 23-27; and that the public interest favors a stay, id. at 28-29. As the court explained, “allowing the special master and [applicant’s] counsel to examine the classified records” would irreparably injure the government because “for reasons ‘too obvious to call for enlarged discussion, the protection of classified information must be committed to the broad discretion of the agency responsible, and this must include broad discretion to determine who may have access to it.’” Id. at 27 (quoting Department of the Navy v. Egan, 484 U.S. 518, 529 (1988)).

[snip]

The challenged portion of the court of appeals’ partial stay simply prevents dissemination of the documents bearing classification markings in the special-master review while the government’s appeal proceeds. That limited relief imposes no harm — much less irreparable injury — on applicant. Applicant does not seriously argue otherwise. Indeed, applicant devotes only two conclusory sentences to irreparable injury: He asserts that it is “unnecessary” for him to make a showing of irreparable injury because the government is not likely to succeed on appeal, Appl. 29, and that “[i]rreparable injury could most certainly occur if the Government were permitted to improperly use the documents seized,” Appl. 35.

The first assertion cannot be reconciled with the very standard applicant cites (Appl. 3), which requires a showing of irreparable injury in addition to a likelihood of success on the merits. See Western Airlines, 480 U.S. at 1305 (O’Connor, J., in chambers). Indeed, vacating a court of appeals’ stay absent a showing of an irreparable injury would be inconsistent with both the “great deference” owed to the lower court’s decision, Garcia-Mir, 469 U.S. at 1313 (Rehnquist, J., in chambers), and general principles governing the granting of extraordinary equitable relief, see Winter v. NRDC, Inc., 555 U.S. 7, 24 (2008).

Applicant’s second assertion — that he “could” be irreparably injured if the government “improperly use[s]” the documents, Appl. 35 — is irrelevant because his application disclaims any request for vacatur of the portion of the court of appeals’ stay concerning the government’s use of the seized documents bearing classification markings. See Appl. 3 n.3, 9 n.6. Instead, applicant seeks vacatur only to the extent that the stay precludes the special master from reviewing those documents. Applicant has not asserted, much less demonstrated, any irreparable injury that would result from that portion of the court’s stay.

As smarter people than I have said, Trump’s failure to argue irreparable harm should end things — and it may well, particularly when counterposed against Navy v. Egan, the Supreme Court precedent giving the (current) Executive great authority to determine who can have classified information.

But with this court, we can never know.

There’s a far briefer section addressing the likelihood that Trump might prevail before the 11th Circuit (again, that’s not the primary argument Trump is making here). But it’s more interesting for our purposes, because these are the issues that SCOTUS might one day review in more substantive fashion, either an appeal of the merits decision before the 11th or, just as likely, as part of a criminal case against Trump.

That section repeats the still-uncontested point that Trump has claimed no violation of his constitutional rights (the standard under Richey).

The court of appeals held that the government was likely to succeed on the merits because the district court abused its discretion in entertaining applicant’s motion in the first place, especially with respect to the records bearing classification markings. App. A at 16-22. Applicant does not directly challenge that holding or address the court of appeals’ analysis, including its conclusion that he has not alleged — much less shown — a violation of his constitutional rights. Id. at 17.

Trump has instead demanded a Special Master to assert the closest thing he has to a defense — that there’s no criminal enforcement mechanism for the Presidential Records Act, and back before he was fired by voters, he had the authority to declassify documents.

Applicant instead contends that appointment of a special master was warranted because this case supposedly involves a “document storage dispute governed by the PRA” requiring “oversight,” Appl. 30-31; see Appl. 29-32, and because applicant had the authority to declassify classified records during his tenure in office, Appl. 33-36. Those contentions are wrong and irrelevant.

As DOJ has laid out before, his PRA claim fails because he has failed to comply with the PRA.

Applicant’s reliance on the PRA is misguided because he did not comply with his PRA obligation to deposit the records at issue with NARA in the first place. As a result, the Archivist does not have custody of those records, and the PRA’s procedures do not apply to them. Cf. 44 U.S.C. 2202, 2203(g)(1).

And besides, DOJ finally notes, if Trump has a complaint under the PRA, he needs to take it to Beryl Howell in the DC District.

Even were that not so, any dispute over access to presidential records under the PRA must be resolved in the District of Columbia, not the Southern District of Florida. 44 U.S.C. 2204(e). If applicant truly believes that this suit is “governed by the PRA,” Appl. 30, he has filed it in the wrong court — which would be yet another reason the government is likely to succeed on the merits here.

DOJ dismisses Trump’s claims that he could have declassified these documents by noting he has not claimed he did, much less presented evidence that he had.

As for applicant’s former authority to declassify documents: Despite asserting that classification status “is at the core of the dispute” in this case, Appl. 35, applicant has never represented in any of his multiple legal filings in multiple courts that he in fact declassified any documents — much less supported such a representation with competent evidence. Indeed, the court of appeals observed that “before the special master, [applicant] resisted providing any evidence that he had declassified any of these documents” and that “the record contains no evidence that any of these records were declassified.” App. A at 19.

DOJ notes that, for the purposes of this appeal, that doesn’t matter because these documents could not be his personal property, the ostensible point of the Special Master (DOJ does not note here what they did before the 11th Circuit, that even if these documents had been declassified, they would be responsive to the subpoena — though it does note earlier than he did not fully respond to the subpoena).

And in any event, any such declassification would be irrelevant to the special master’s review for claims of privilege and for the return of property. App. B at 23. As the government has explained (App. D at 12-17), the classification markings establish on the face of the documents that they are not applicant’s personal property, and the documents likewise cannot contain information subject to a personal attorney-client privilege since they are necessarily governmental records, see Exec. Order No. 13,526, § 1.2(1), 75 Fed. Reg. at 707.7 Thus, as the court of appeals emphasized, applicant’s “declassification argument” is a “red herring” because “declassifying an official document would not change its content or render it personal.” App. A at 19.

Then, in a footnote, DOJ notes that Trump has largely given up the Executive Privilege claims (though he appears to be asserting them before Cannon).

7 In the district court, applicant suggested that some of the seized records might be subject to executive privilege. E.g., D. Ct. Doc. 1, at 19; D. Ct. Doc. 58, at 7-11 (Aug. 31, 2022). But applicant all but abandoned that argument in the court of appeals, and the application does not even mention it. With good reason: Applicant has identified no authority for the suggestion that he could invoke executive privilege to prevent review of Executive Branch records by “the very Executive Branch in whose name the privilege is invoked,” Nixon v. Administrator of General Services, 433 U.S. 425, 447-448 (1977). And in any event, any such invocation would necessarily yield to the government’s “demonstrated, specific need for evidence” in its criminal investigation concerning the wrongful retention of those very documents and obstruction of its efforts to recover them. United States v. Nixon, 418 U.S. 683, 713 (1974). See App. D at 12-17.

This claim on privilege is one that SCOTUS might see on an appeal.

Again, little of this stuff would be before SCOTUS in substantive fashion any time soon. But they’re all the topics that the lower courts will be grappling with for the next several months until this comes back to SCOTUS (if it ever does). And this is what they’ll look like for SCOTUS’ first glimpse of them.

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92 replies
    • bmaz says:

      I have been using CM/ECF/PACER longer than most people here ever knew what it was (we were an initial test jurisdiction). I will accept a refund for 35 years of use, but very much doubt I will get one.

      • Doug Kane says:

        That’s pretty amazing, since CM/ECF was implemented for the first time in 1996 (about 26 years ago) in the Northern District of Ohio in a number of asbestos cases. Pilot programs were implemented in the Western District of Missouri, the Eastern District of New York and the District of Oregon in late 1997 (about 25 years ago). The program began rolling out nationally in bankruptcy courts in 2001, 2002 in district courts, and in 2004 in appellate courts. So, I’m not sure how you could have used CM/ECF 35 years ago!

        It is true that PACER was available in 1988 in terminals in libraries and office buildings. However, it didn’t become available on the internet until 2001

        • Baltimark says:

          Bmaz assuredly needs no surrogates but as a non-lawyer who can still servicably parse sentences, I would just note:

          1. Bmaz does not in fact say he has been using CM _and_ CF _and_ PACER for 35 years.
          2. The “refund” element applies to PACER specifically and you yourself note that PACER was broadly deployed in libraries and “office buildings” 34 years ago.
          3. It seems not a stretch to assume that Bmaz mayhap spent some time in “office buildings” and even “libraries” in the 1980s.
          4. And if he was part of a pilot program, the leap from’88 to ’87 seems tres plausible.

          Your dunk clangs on the back of the rim and bounces asunder, Doug. And dunks aren’t the game here, anyway.

          [apologies to season ticket holders for cosplaying a mod in justifiable high dudgeon, but I guess Doug’s sloppy bleating touched a nerve; there really are quite the gaggle of newbs bouncing in through the Twitter wormhole who think EW’s comment section plays by the normal debased rules of online discourse; anyway, back to my normal Fascinated Lurker mode]

          • USMA1986 says:

            As a longtime lurker, the only thing I enjoy more than watching Bmaz destroy trolls is watching someone beat him to the punch, and thus defend the defender.

          • bmaz says:

            Lol, I was thinking it was 1987, not totally sure, may have been 1988, but we certainly had it in my office. As I said, we were early though because part of the limited pilot program. Think only ECF initially. I did not like it, and usually had our runner hand file, but it was there. Can’t remember the first time I actually used PACER, but was also a long time ago. Was a hell of a long time before EW or me even on the internet as we know it. If there are to be refunds though, give me one, I am due.

    • Arteberry says:

      Meanwhile, back at the MAL ranch, NY Times reports today that Bobb has been giving her version of events to the Feds on the non-production of documents and misrepresentation of the search in response to the subpoena. In particular, Bobb claims Corcoran sat her down and explained to her how he personally searched the records then existing at MAL, with that discussion supposedly constituting the “information provided to me” referenced in Bobb’s signed statement. She says Epshteyn also played a role in roping her into being “custodian of records.” If Bobb can provide any receipts on this, or if there is otherwise some collateral for her story, then Corcoran is in a world of hurt. In August, when it was first reported that Bobb signed the statement and Corcoran authored it, I opined that Corcoran would be gone from Trump’s team very quickly. If the over/under had been set at 60 days, I would have taken the under. Well, he’s lasted longer than I imagined but it can only be a matter of days before the FBI calls him in for a chat or, failing that, he receives a grand jury subpoena. I can’t see how AC privilege is going to allow Corcoran to clam up if he told Bobb he personally did the searching. Corcoran’s best bet may be to take the fifth. In the end, though, he’s going to have to throw Trump under the bus. Still, that won’t save Corcoran from all obstruction consequences.

      Speaking of consequences, Bobb is not getting home scot-free even if she is largely telling the truth. As a custodian of records, under the Fed. Rules of Civ. Pro., she has an affirmative duty–quite apart from whatever she said or did not say in her attestation–to have conducted a search that is reasonable for the purposes evident in the subpoena. Even if she delegates physical searching to someone else (say, Corcoran) she must have personal knowledge of the manner and procedure for conducting the search. So, she can be pressured on her lack of understanding of the supposed search and search procedure…

      Bobb might be able to cut a non-prosecution deal with the government, but only if she is truthful on this matter AND she agrees to come clean on everything she knows about the J6 events. She obviously knows some interesting details on that side.

      • Silly but True says:

        Bobb’s story sounds reasonable. Corcoran also likely did what she claims he did. In this case, there would be zero misrepresentation by either of them; on contrary, it seems both are being completely truthful here.

      • nedu says:

        As a custodian of records, under the Fed. Rules of Civ. Pro., she has an affirmative duty– … –to have conducted a search that is reasonable for the purposes evident in the subpoena.

        I’m sorry, but would you mind running me through this statement slowly?

        First, just making sure we’re on the same page: we’re talking about the “Subpoena To Testify Before A Grand Jury” which is reproduced on p.11 of the attachment DE 48-1 (FLSD 9:22-cv-81294). That grand jury subpoena is directed to “Custodian of Records” &c, and commands that person to bring documents with them.

        Second, I’m not questioning the actual power of the United States District Court for the District of Columbia to enforce compliance with this grand jury subpoena, including through the court’s authorities to punish contempts.

        But, on the face of this grand jury subpoena –perhaps I’m missing this somewhere — on the face of this grand jury subpoena, I don’t see that it conforms to FRCP Rule 45(a)(1)(A)(ii). Specifically, I don’t see the “civil-action number”.

        So, anyhow, would you mind slowly explaining how the “Fed. Rules of Civ. Pro.” –not some other rules, but those specific rules– impose an affirmative duty on the custodian of records to conduct a reasonable search here?

        What I’m getting at, very simply, is how is the custodian of records s’posed to know that her compliance with this grand jury subpoena is governed by FRCP rule such-and-so, which states this-and-that?

        • Arteberry says:

          The reference to Fed. Rules Civ Pro. was a typo; it was supposed to be Crim.Pro. (Crim Rule 17, as distinct from Civ. Rule 45). However, in both instances, a subpoena duces tecum is a court order. The duty on the responding party is the same, In your comment you are trying to create a distinction without a difference. In fact, it’s hard to see the significance of the point you make unless you are suggesting—astonishingly—that a grand jury subpoena somehow imposes fewer duties on a purported custodian of records than a civil subpoena. A quick glance at the case law suggests otherwise. See, e.g., Curcio v. U.S., 354 U.S. 118, 125 (1957); In re Grand Jury Proceedings, 473 F. Supp. 2d. 201, (2007); Matter of Dillon, 824 F. Supp. 330, 334, (1992). The cases discuss the diligence and knowledge burden on the custodian of records, as well as on the principal (here Trump) who appoints an outside or ad hoc custodian of records.

      • Former AFPD says:

        Arteberry, We meet again on this topic. Welp, Corcoran is still there. It certainly appears that Corcoran and Bobb have federal criminal exposure related to these events, that they are potential witnesses against TFG, and that there are former and present conflict of interest problems in this case. It is hard to imagine why a lawyer would remain on a case with so much professional danger. Why the continued acquiescence to the conflicted representation by DOJ and the courts involved in this case? I just don’t understand it.

  1. earlofhuntingdon says:

    Sweetly argued by the Solicitor General:

    [A]pplicant [Trump] certainly cannot establish the clear error required to justify the relief he seeks — particularly because he does not acknowledge, much less attempt to rebut, the court of appeals’ conclusion that the district court’s order was a serious and unwarranted intrusion on the Executive Branch’s authority to control the use and distribution of extraordinarily sensitive government records.

    • Ginevra diBenci says:

      My favorite part was the tart and acerbic jurisdiction stiletto–that if Trump wants to raise PRA, the place to do so is DC, not SDFL.

      For all of us who’ve been waiting for exactly this assertion, it too tasted sweet.

        • bmaz says:

          It is NOT sad, it is the truth. What is “sad” is when people on an Internet forum relentlessly spew that cheap bunk.

          • Rugger9 says:

            You might get a judge with issues (today’s highlight was a KY judge walking around in his underwear), and 12 jurors can be difficult to manage. In a criminal case it only takes one holdout to get a mistrial, and juror misconduct is always a possibility.

            As a hypothetical, if 30% of the electorate is MAGA and there are 12 on a jury there is less than 1.5% chance that all 12 will not be MAGA. If one assumes DC venue and 20% MAGA, it’s about 6.7 %. Jury selection management will improve the odds, but it’s very unlikely that all MAGAs will be removed. That policy might (though IANAL) also get an appeal from TFG about unfair exclusions and he might prevail on that point.

            Criminally, a unanimous verdict is required to convict. Two things characterize MAGA types: fealty to Individual-1 and being close-minded. Neither mindset would encourage a juror to return a guilty verdict.

            • bmaz says:

              Again, partially depends on where the trial held. But things can happen at criminal jury trials. You never know

            • Just Some Guy says:

              “You might get a judge with issues (today’s highlight was a KY judge walking around in his underwear)…”

              Thanks for the reminder that my state’s judiciary is a freakshow mess of a dumpster fire. :/

              At least we have elections next month (that’s a whole ‘nother can o’ worms, about how electing judges is… weird).

        • FLwolverine says:

          From another angle: The only time I ever said something was a slam dunk (as a comment, not a representation) was a small real estate deal (rehabbing and flipping a house) that had everything going for it. So of course both investors eventually took a loss. Fortunately, the amounts involved were not huge, neither investor lost their eating money, and I didn’t represent either of them.

          No, there are no slam dunks in the world.

      • Mister Sterling says:

        It was a slam dunk today, Arizona Man! The republic is finished. But it isn’t going to go full batshit crazy today on this appeal..

  2. obsessed says:

    Does the following theory make sense? I can’t believe that Trump would be so self-destructive as to bring all this upon himself if he were motivated by greed to retain the documents after it was clear that he’d been busted with them. Whatever he could gain from selling or otherwise leveraging the documents, including revenge, would not justify putting himself in such clear legal danger and repeatedly daring DOJ to indict him. Doesn’t it therefore seem far more likely that his motivation is fear, not greed, and that whatever he was and/or still is trying to keep is evidence that would put him in greater danger than the NARA-related charges?

      • Rayne says:

        Or more.

        And yet it doesn’t matter the reason why Trump took the documents because federal law doesn’t permit
        — Concealment, removal, or mutilation generally (18 USC 2071) of government records;
        — Gathering, transmitting or losing defense information (18 USC 793); or
        — Destruction, alteration, or falsification of records in Federal investigations (18 USC 1519),

        regardless of Trump’s personal motivations.

      • Shadowalker says:

        I thought of another reason. He knows deep down he lost and by having actual presidential material around, which he could fondle all day long, would go a long way for him to hide that unpleasant truth from himself. This would go a long ways to explain why he not only had 100’s of classified docs but over 20,000 unclassified docs.

        • Fraud Guy says:

          Thank you for the disturbing imagery of Trump sitting at his desk, pulling out his “special” leatherbound box, and opening it to handle his precious documents…

          • Shadowalker says:

            What I don’t understand is why did Trump hand those classified documents to NARA back in February? No one had any proof that he had any of them until he did that, which by itself would be enough probable cause for a search warrant.

              • Shadowalker says:

                No. Why did he hand *any* of them back? They had no proof that he was holding them at all until he did that.

                  • ScottMI says:

                    According to the public timeline, NARA didn’t make a criminal referral to DOJ until they found marked-classified documents in the initial tranche of documents received in January. So either they didn’t know that Trump had classified docs until they received that batch, or the evidence threshold for a criminal referral hadn’t been met until that point.

                    • timbo says:

                      I think the best thing to do is study up on how NARA goes about organizing Presidential records when there is a transition between Administrations. Then consider that the Trump administration (such as it was) failed to follow the law governing Presidential transitions, let alone comply with the PRA, when finally booted out of the White House by Biden’s successful election to office. NARA’s schedule for processing all the Presidential records originally envisioned a transition period (required by law) that didn’t occur. That’s not normal and NARA’s plan for handling all these records wouldn’t have expected that. Basically, NARA is there to ensure that the President does the right thing but it generally assumes that…the President will do the right thing, something that Trump is no good at.

                      That helps explain the delay by NARA in getting a handle on what it had and what it didn’t have but let’s now look at the first widely known records that NARA became aware it did not have, to whit, the Kim Jong-un love letters. Where were they? Well, they weren’t at NARA so…NARA started looking for them…

                      ref https://www.msn.com/en-us/news/politics/national-archives-sought-trumps-letters-with-kim-jong-un-obama-in-may-2021/ar-AA12A50S

                      That’s May of 2021. By that time NARA had already >publiclyother records< that NARA is trying to recover from the Trump organization. That's May of 2021 when that became widely disseminated public knowledge…

                • Becker says:

                  NARA absolutely knew he retained documents. Start at the beginning. Marcy has reported all of it with detailed timelines.

            • earlofhuntingdon says:

              I don’t know, perhaps he handed some of them back because it was illegal for him to have any of them, and it was before he decided to ignore sage advice and listen to his own? Or maybe it was because denying he had any would have been another felony?

            • meryvrmer says:

              Many of the documents TFG stole were so sensitive that they’d have been subject to extremely rigorous storage/handling/tracking protocols. And it isn’t hard to imagine why the IC might not have immediately moved to recover them via subpoena or a search warrant, the execution of which might become public, as it in fact did.

              First, the relevant agencies would have done a thorough inventory. I assume that this was begun long before TFG stole them. Then they’d have sought to a) mitigate potential damage, and b) pull whatever threads emerged from that inventory. Were a preponderance of the stolen documents related to any particular program(s)? Who would be interested in them, and to what possible end? Where are these documents now, and how secure are they in situ? Does the potential intelligence value of leaving them in situ outweigh the risks of recovering them before adequately answering these questions, among others, and especially assessing and mitigating any risk to national security that disclosure that they were ever in wild might present? Is there evidence, or emerging evidence, that any of the information the documents contained has already been compromised, by whom and why, and what, in turn, are the national security implications of that?

              I am okay with never knowing much about any of that because I’m totally unqualified to determine if the IC’s actions/inactions/timelines, both in answering the above questions and in referring the matter to DOJ, were justified, and I expect that’s true of everyone on here.

              But it strains credulity to think that the IC didn’t know that many of these marked/restricted documents weren’t in appropriate secure storage long before TFG reluctantly packed up and decamped to MAL. It wasn’t exactly a secret that TFG ‘s treatment of such material, as well as classified information itself, was shockingly cavalier. The man is a walking, blithering national security risk, as Biden made clear on February 5, 2021, after barring TFG (unlike the other former presidents) from intelligence briefings: “What value is giving him an intelligence briefing? What impact does he have at all, other than the fact he might slip and say something?” That suggested to me, anyhow, that his perceived potential – never mind actual – risk to national security was rather more acute than I’d imagined. Not that it ever crossed my mind that we’d end up where we are now ….

      • Faithdc says:

        Supposedly, Trump tried to bribe NARA to turn over documents regarding the Russia probe. Speculation of course: but there must be serious evidence that he is guilty as sin colluding with Russia, personally. He only cares about himself. He’s not focused enough to plan a trade with foreign countries with information they would want. It’s always about him and him alone.

      • Jimmy Anderson says:

        “There are various reasons why Trump may have taken the documents in the first place, including both greed and fear, but at this point, fear has to be in the lead as an explanation for his current actions.”

        Just as a personal observation – of the narcissistic grandiose personalities that I have known (well) – every motivation or emotion quickly and inevitably transforms into anger.
        Seething, all consuming, underlying rage.

      • taluslope says:

        Of the various reasons I believe is simply that he has the emotional age of a young child, perhaps teenager: “No one can tell me what to do!”

        Makes him very easy to predict (and control, actually).

    • bidrec says:

      Too conceptual.

      His motivation is “gettin’ over”. He wants to get over on the other guy. I worked with [for] people like him. The reason you do not hear about these others is because they pick their battles more judiciously.

      • UziTenenbaum says:

        Yeah, I don’t think you can rule out a pure power/ego trip that nobody in his orbit had the balls to tell him was a terrible idea (represented in Peterr’s post above as “vanity”). It doesn’t make “sense,” but it’s consistent with a supreme narcissist’s view of the world.

      • bbleh says:

        Concur, not least because it’s consistent with his widely and professionally discussed mental pathologies. But I think another part of it is, he’s always got away with it before, and he has no reason to assume (and as noted many reasons not to do so) that he won’t get away with it this time (and this assumes he’s still capable of making such judgments fully rationally and isn’t just plowing ahead instinctively).

        • bmaz says:

          “…professionally discussed mental pathologies”.

          Can you point out a competent source for that claim?

          • MB says:

            No, if you believe in the absolute sanctity of the Goldwater Rule.

            Otherwise:

            1) Bandy Lee’s book “The Dangerous Case of Donald Trump” (psychiatrist defying the Goldwater Rule) and

            2) Steven Hassan’s book “The Cult of Trump” (cult expert/researcher not bound by the Goldwater Rule)

          • BirdGardener says:

            You mean like this 2017 book?: https://www.amazon.com/Dangerous-Case-Donald-Trump-Psychiatrists/dp/1250179459

            Publicly diagnosing someone is a no-no, of course; diagnosing someone who is not your client is a no-no, and violating a client’s confidentiality (outside the legal exceptions) is a crime, or so I was taught many decades ago while obtaining my master’s degree. Not claiming any expertise, though; it was a long time ago and much has changed.

            My own personal assessment is that he’s demonstrated both narcissistic and sociopathic tendencies, but that’s merely my personal opinion, not a professional diagnosis.

        • JonRamDo says:

          “…his widely and professionally discussed mental pathologies.”

          – Presents an irreconcilable contradiction for me. Professional discussion of ‘his’ mental pathologies can only be between doctor and patient – else it is an unprofessional violation of doctor – patient confidentiality. (It would be unprofessional for the patient to elsewhere discuss his own mental pathologies, because he’s not a mental pathologies professional.)

          The FBI likely has and is using Investigative Psychology professionals – to among other things, ‘get inside that — head.’

      • -PeterS- says:

        Asking why he took the documents is interesting because it leads to what he took. Beyond that, after six years, I’m SO fucking bored of trying to get inside that fucker’s head.

        Rant over…

    • Commentmonger says:

      Trump is doing it because he can. He always has and he always had gotten away with it, and there isn’t anything to say that he won’t again. He wants them because there is something he wants to do with them. Sell them, blackmail someone, show off, recollect, whatever doesn’t matter. He didn’t do it while he was president because he was doing something else. He can do it anytime he wants. He doesn’t have to follow any rules.

      He doesn’t have the capacity to think about greed or fear. He only thinks about what he wants to think about. It has always gone that way, and he is going to complain about it forever until he gets his way. He is a pampered malignant narcissist who is a borderline sociopath probably on the autism spectrum. He just has wounded pride and a sense that if he doesn’t succeed it’s because others are cheating and others are trying to put him personally down. It isn’t complicated. Maybe it would be different if he didn’t have an entire life of privilege. But it’s all he has known, and that is his reality. No greater motivation needed. To me, he needs to go to prison for a very long time for the damage he has done to the country.

      • Tom-1812 says:

        Trump is also an international problem because of the encouragement his pernicious behaviour gives to his like-minded imitators around the world. Here in Canada the new leader of the federal Conservative party, Pierre Poilievre, campaigned on a Trump-lite platform of “Freedom!” and the falsification of the historical record; for example, claiming in one of his campaign videos that it was “the commoners” who forced King John to sign Magna Carta in 1215, the implication being that Canadians should “reclaim your freedoms” from Prime Minister Justin Trudeau the same way “the commoners” did from King John. Of course, it was the earls, barons, and other feudal magnates with their armed retainers who compelled King John to sign Magna Carta, not the commoners.

    • stancat says:

      The simplest answer is that he no longer has possession of some docs that are missing. His motivation is to delay the US from learning from him how he disposed of them.

  3. Amicus says:

    So, there are elite Supreme Court practitioners, their colleagues, law professors, high level appellate practitioners, judges, law clerks, untold numbers of the panoply of the learned legal community, perhaps tens of thousands who have read the Solicitor General’s opposition to the stay motion and understand that under the accepted rules of law Trump’s motion to the Court is frivolous. Some will say so, many will stay silent. I wish I knew a way to communicate this well to ordinary citizens because it is hand in glove with the observation that this is about power and not law, or perhaps better said, the struggle of law as a restraint on power.

    The USG’s opposition shows that Trump’s motion at best raises a third, fourth or fifth tier argument insufficient to justify relief. First, and somewhat subtly, the Solicitor questions what is the Article III basis of this matter altogether because “[d]istrict courts have no general equitable authority to superintend federal criminal investigations.” Opposition at 2. I raised this same concern earlier on: Trump had a legal avenue of relief and could have filed a Rule 41 motion but did not do so.

    Second, the Solicitor notes that “[m]ost notably, applicant has not even attempted to explain how he is irreparably injured by the court of appeals’ partial stay.” Id. at 3. There is no reason to beat this horse again, but of and by itself it is dispositive.

    Third, we are not writing on a clean slate. This is not the first time a litigant has come to the Court arguing that an appellate stay is erroneous. And the Court has established a legal standard of clear error for entitlement to such relief. Stated simply, you don’t get to run to the highest court just because you claim the lower court got it wrong.

    “The court of appeals thus correctly held that it had appellate jurisdiction to review and stay the portion of the September 5 order that requires the government to turn over the documents bearing classification markings for special-master review. And even if there were some doubt on that score, applicant certainly cannot establish the clear error required to justify the relief he seeks — particularly because he does not acknowledge, much less attempt to rebut, the court of appeals’ conclusion that the district court’s order was a serious and unwarranted intrusion on the Executive Branch’s authority to control the use and distribution of extraordinarily sensitive government records. The application should be denied.” Id. at 6.

    Fourth, there is the fundamental issue as regards whether plaintiff has established an Article III injury concerning the DOJ’s retention of the marked classified documents. No such showing has been made or could be under recognized precedent.

    “The government has also argued that the injunction is unwarranted precisely because the special-master review process is unnecessary with respect to the documents bearing classification markings, over which applicant has no plausible claim of privilege or for return.” Id. at 19.

    And then we get to the interlocutory jurisdiction appeal argument which the Solicitor disposes of fully.

    This is long, and I realize that fact, but I think it is worth pointing out that the Solicitor, and the Solicitor only signed the Opposition. I suspect that will not go unnoticed at the Court.

    • clyde g says:

      Thank you for your analysis. I have a non-lawyer question. In your last paragraph you noted that only the Solicitor signed the Opposition and that the Court would take notice. You are implying something, but what?

    • Shadowalker says:

      “ Solicitor questions what is the Article III basis of this matter altogether because “[d]istrict courts have no general equitable authority to superintend federal criminal investigations.” ”

      Appellate raised that issue as well in the discussion of the Richey Factor.

      “ United States v. McIntosh, 833 F.3d 1163, 1172 (9th Cir. 2016) (“In almost all federal criminal prosecutions, injunctive relief . . . will not be appropriate. Federal courts traditionally have refused, except in rare instances, to enjoin federal criminal prosecutions.”).4
      4 The Supreme Court has recognized an exception to this general rule— where “the threats to enforce the statutes against appellants are not made with any expectation of securing valid convictions, but rather are part of a plan to employ arrests, seizures, and threats of prosecution under color of the statutes to harass appellants.” Younger v. Harris, 401 U.S. 37, 48 (1971) (citing Dom- browski v. Pfister, 380 U.S. 479, 482 (1965)). Plaintiff has not made such an allegation here, nor do we see any evidence in the record to support one. And though Younger involved a state prosecution, many courts have applied the basic principles in Younger to federal prosecutions. See, e.g., Deaver, 822 F.2d at 69–70 (“[I]n no case that we have been able to discover has a federal court enjoined a federal prosecutor’s investigation or presentment of an indictment. . . . Because these defendants are already guaranteed access to a federal court, it is not surprising that subjects of federal investigation have never gained in- junctive relief against federal prosecutors.”).

      • timbo says:

        Note 4 is now where we are at it seems: Will the Supreme Court basically start telling the Executive branch what to do with its investigation into Donald Trump, Former President?

    • BirdGardener says:

      Wasting government money is a common GOP tactic: waste taxpayer dollars and then complain about taxes and wasteful government spending. It’s not the primary purpose of these lawsuits, but a definite side-benefit; very similar to the—what, 17?—Benghazi investigations. Distract, mislead, throw mud at your opponents (and red meat to your supporters), and waste taxes that you can later complain about being wasted = win, win, win, especially at the ballot box.

  4. OldTulsaDude says:

    To me the most disturbing and disheartening sentence form Dr. Wheeler is this:
    “But with this court, we can never know.”

    • CroFandango says:

      I was disconcerted by a different comment from Dr Wheeler, “As smarter people than I have said, … ”

      Yeah, right, people smarter than her!

      There are others who also work hard, but when you factor in the prodigious output and the quality of analysis, no one comes close.

      Thank you for publishing.

  5. William Allen Simpson (DayDreamer) says:

    “But with this court, we can never know.”

    Passing along the comment (across our dinner table) of a former Member of Congress, who also reads here from time to time: [TFG] is transactional, and apparently doesn’t understand that SCOTUS owes him nothing. Unlike Cannon, they have no motivation for higher office or more money or approval from the MAGA crowd. They already have everything they want from him, and life tenure.

    OTOH, the originalist bent might be that there was no history of government ownership of presidential records. The Founders gave their constitutional convention notes to Washington to keep secret for many years. Another opportunity to dismantle the administrative state.

    • -PeterS- says:

      I listened to stories about how the 11th Circuit was in the tank for Trump, and look how that went. For one thing, why would SCOTUS do him a favour which could then also benefit Democrat presidents leaving office in the future.

    • OldTulsaDude says:

      Roberts cares about appearances; Thomas, though, appears to me unconcerned about displaying his biases.
      Goes along with the notion that when beliefs are right one doesn’t hide them but lets them shine.

      • Shadowalker says:

        You can add Alito. After Dobb’s he’s just daring the masses to do something. He forgets, there was a time when manufacture, distribution and sale of alcohol was prohibited written into the Constitution. Took them 10 years of just about everybody ignoring the ban to enact another amendment to remove it.

  6. brucefan says:

    I’m a nuts and bolts guy, but you gotta love this grace note: “Applicant’s term of office ended in January 2021.”

    Dry, but potent.

  7. Yvonne Arthur says:

    Came across this site today. IANAL, but educated and literate enough to follow the discussion. And the best bit? It’s all about ‘boring’ facts! Thank you; it made my day.

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