Judge Dearie Confirms Trump Has Claimed Executive Privilege Over a Personal Document

Raymond Dearie just held his second public status conference in the Trump Special Master proceeding. He had the government explain why, after Trump’s team claimed there were 200,000 pages to review, the total ended up being 22,000.

AUSA Steve Morrison explained that the estimate came from a vendor, which developed its own estimate based off a standard business letter length of just under 20 pages per document, times the 11,000 documents. He noted that the 32 boxes that had been seized could not possibly have fit that much; he gave 82,000 as the max amount.

Mostly, it seemed, Dearie called the conference to express frustration with the paucity of the descriptions behind the designations so far, and concern that he’ll get 11,000 versions of that in November. Several times, he said he wanted an idea of how many disputes to expect on November 12, when he gets the items about which there remains a dispute, so he can at least figure out whether he needs more staff.

There were some specific questions, though.

For example, he asked why the two sides hadn’t been able to decide whether the government already had a copy of what is described as Item 5 in this accidentally docketed inventory, a letter from Marc Kasowitz to Robert Mueller. After some squabbling, Dearie complained, “I have no patience for either one of you on this point. If it’s in Department of Justice possession, either produce it or make a representation it’s in DOJ possession.” Filter Counsel Anthony Lacosta described that he sent Jim Trusty a link on September 30 showing a publicly produced version of the letter that seems to be an exact copy of the one seized. That means it must be this letter published by the NYT on June 2, 2018 (the second one on the page).

Dearie also noted that there was nothing in the four pardon packages included that indicated any legal advice had been given — which suggests Trump is claiming a privilege that should not stand over those as well.

Perhaps most importantly, Dearie indicated that there’s one letter of the documents discussed so far that Trump has claimed is a personal document but over which he has claimed Executive Privilege.

I see a doc for which claim there’s a personal doc, and also a claim that Executive Privilege covers it. Unless I’m wrong, there’s a certain incongruity there. Perhaps plaintiff’s counsel will address that in submission.

That is, Trump is doing precisely what the law doesn’t envision.

And among other things, Dearie is making that clear as the challenge to Judge Cannon’s intervention proceeds at the 11th Circuit.

Udpdate: Corrected documents/pages error in first paragraph.

37 replies
  1. Rugger_9 says:

    I’m glad Judge Dearie is plowing ahead, but there are apparently more questions on exactly how Cannon got the case (TFG’s lawyer filed in person) and it might become moot anyway if DoJ is successful in what they are trying to do (though IANAL).

    Shining the light on this criming is how the walls get pushed in on Individual-1.

    • Joeff1953 says:

      What questions? She’s the only judge in that division. Same reason the gun people always sue California in ElCentro.

  2. earlofhuntingdon says:

    Yes, as I understand it, the PRA specifies that a document is either personal or a presidential record. If the former, EP could not apply and the document could easily be obtained by a valid warrant. If the latter, it might apply, but it could be breached for several reasons, one of which is to further a criminal investigation. Trump is no longer throwing only ketchup at the wall.

  3. Shadowalker says:

    The PRA leads with definitions. And nowhere does asserting Executive Privilege transform a presidential record as defined by the act into a personal one. The only thing that happens when a president or former president asserts Executive Privilege, is the document(s) that are privileged are restricted from public disclosure beyond the automatic 5 year date up to a maximum of 12 years. Congressional inquiries, current executive need for specific documents (it does not have copies of elsewhere) and court action either civil or criminal are excluded from the privilege restriction.

    “ 44 U.S. Code § 2201 – Definitions
    (2) The term “Presidential records” means documentary materials, or any reasonably seg­regable portion thereof, created or received by the President, the President’s immediate staff, or a unit or individual of the Executive Office of the President whose function is to advise or assist the President, in the course of conducting activities which relate to or have an effect upon the carrying out of the constitutional, statutory, or other official or ceremonial duties of the President. Such term—

    (A) includes any documentary materials relating to the political activities of the President or members of the President’s staff, but only if such activities relate to or have a direct effect upon the carrying out of constitutional, statutory, or other official or ceremonial duties of the President; but

    (B) does not include any documentary materials that are (i) official records of an agency (as defined in section 552(e) [1] of title 5, United States Code); (ii) personal records; (iii) stocks of publications and stationery; or (iv) extra copies of documents produced only for convenience of reference, when such copies are clearly so identified.
    (3) The term “personal records” means all documentary materials, or any reasonably segregable portion therof,[2] of a purely private or nonpublic character which do not relate to or have an effect upon the carrying out of the constitutional, statutory, or other official or ceremonial duties of the President. Such term includes—

    (A) diaries, journals, or other personal notes serving as the functional equivalent of a diary or journal which are not prepared or utilized for, or circulated or communicated in the course of, transacting Government business;

    (B) materials relating to private political associations, and having no relation to or direct effect upon the carrying out of constitutional, statutory, or other official or ceremonial duties of the President; and

    (C) materials relating exclusively to the President’s own election to the office of the Presidency; and materials directly relating to the election of a particular individual or individuals to Federal, State, or local office, which have no relation to or direct effect upon the carrying out of constitutional, statutory, or other official or ceremonial duties of the President.”

  4. Thorvold says:

    Your first paragraph needs correcting. The 200,000 number that was alleged by Trump was the number of pages, not documents. The appropriate total number of pages as listed by the government (ECF 140) was 21,792 pages, not 12,000.

  5. Silly but True says:

    The universe of “privilege” is one area where there might legitimately exist some incongruities along its boundaries.

    Not all parties here and not all “privileged” here may be the same animal.

    The most fundamental example is DoJ’s initial definition of “privilege” solely related to Attorney-client privilege; in fact they initially argued that a Special Master was not necessary to review any privilege because it had its filter team review for Attorney-Client privilege. Of course they were wrong on merit of that argument. But that’s not the incongruity at issue here.

    The incongruity is between what I’ll term the doctrine of “bona fide” Constitutional Executive Privilege vested to the President as an outgrowth of his Constitutional Separation-of-Powers loosely stemming from Const. Art. II, Sec. 2, Clause 3 and that has largely been established through case law to apply to Presidents’ standing in protective relation to subordinates, assuming defense in litigation against them or pressing litigation on their behalf, refusing Congressional calls or demands for papers, in Adsense from seat of government, to their disadvantage, and/or challenging Congressional legislation deemed detrimental to Executive Branch interests. Presidents through history have at times sought to apply certain of their immunity onto others and access to things and in resisting courts and Congress.

    When Trump speaks of (Executive) “privileged” documents, he is almost certainly speaking of documents that may fall under the collective of this doctrine. And in fact, there may be some overlap or even competing conditions of documents that might may a document both private, as well as falling with a harbor or a Constitutional Executive Privilege doctrine that has been ever-more widely applied and litigated. There is still a large grand canyon’s divide to be staked out here. For example, it is still not entirely settled that prosecutorial & grand jury, wholly internal Executive Branch activities, have unlimited access to Executive Privileged information; a President may be subject to criminal process, but limits of that process are unsettled, and same goes for expiration date of such privilege.

    Contrast this doctrine with the definition of “privilege” that DoJ (and underlying NARA in its referral): the statutory definition that was first codified into law as part of the Presidential Records Act of 1978 and which codifies a process for the statutory-privileged records by which former and incumbent Presidents conduct reviews for the statute’s executive privilege prior to public release.

    These two versions of executive privilege are called the same name, used to cover a universe of overlapping things, but are radically different in their underlying authority.

    “Bona Fide” Executive Privilege is not explicit; there is no checklist of recipe of ingredients that get mixed together to bake (or half-bake) what various Presidents and associated parties have claimed or tried to claim, but it does exist as its own doctrine, Constitutionally-founded and separate from the PRA statutory provisions.

    And so, it’s reasonable that there might be some incongruous areas of dispute, or even some records on a specific basis that might fall within a Venn diagram of shared or partially-shared elements of Constitutionally-doctrined-Privilege, Attorney-client-Privilege, PRA-statutorily-defined-privilege, and also even “private” records of a President.

    • Joeff1953 says:

      Saying DOJ was “wrong” b/c Loose Cannon disagreed with them is a bit of a stretch, doncha think?

      • Silly but True says:

        No. As was clear, I am calling them wrong in their attempt to conflate their use and argument of an attorney-client privilege filter team to solely review just attorney-client privilege issues as mooting any need to review any other privilege issues such as Trump’s Constitutional-privilege or PRA-statutory-privilege (along with anything private).

        I called them wrong on that argument, because they were.

  6. Christenson says:

    I began to wonder if, for the investigation into the disclosure of classified document, whether the FBI had checked the papers involved for latent fingerprints, but decided the fingerprints on the unclassified docs probably wouldn’t add much data.
    For PRA, there are two direct purposes — prosecution, which requires showing that some reasonable fraction of the records seized were presidential, and archiving, which would exclude the purely personal. I’d bet Dearie is frustrated; he had wanted rolling production and a clear distinction between attorney/client and executive privilege, and I don’t think he feels free to order better descriptions for the documents in dispute.

    • Shadowalker says:

      The PRA has no mechanism for enforcement, NARA couldn’t even go to court to get a subpoena and why it took so long for them to get the first batch in February.

      “ records seized were presidential, and archiving, which would exclude the purely personal.”
      Going by the PRA the only things to sort out are if they are Presidential Records or Personal, that’s it. All Presidential records are the sole property of the United States which reserves all rights and shall be under the control and possession of the Archivist (NARA) upon the end of the President’s term in office. So while a love letter addressed to the President while he was in office from his mistress may be personal, a love letter from a foreign leader is not.

    • Commentmonger says:

      The problem is that the Trump team doesn’t want to spend any time on it. And DOJ shouldn’t have to. I’ve been on a lot of jobs like this with multiple teams working on things. So, as they say at the caberet, meine Damen und Herren, willkommen beim das Clusterfickken.

      • Shadowalker says:

        I get the impression that the Trump team thinks anything that is deemed by the Special Master as Executive Privileged will be returned to Mar-a-Lago.

        • Arteberry says:

          Trump’s lawyers don’t expect to get the alleged EP documents back* and they don’t especially care. The EP claim is bogus, of course, but the Trump game is to somehow avoid having the 11th Cir. shut down the whole civil case and get these 11,000 non-classified docs before Cannon (where Dearie’s assessments will be disregarded) so she can agree with Trump, in her wonderfully corrupt way, that EP should apply to some or all the docs. That would stop DOJ from using those docs in investigation…leading to yet another DOJ appeal to the 11th Cir. Trump doesn’t need the docs back; if he were right about the applicability of EP (insert laugh track here) then in principle the docs could be maintained in secrecy at NARA.

          Now, if Trump’s plan seems remarkably far-fetched, that’s because it is. He is dealing from a position of extreme weakness, except for any help that he has time to extract from Cannon.

          * It’s true that he has claimed and probably will claim both EP and personal property as to various documents. A ridiculous self-negation? Dearie and virtually everyone else thinks so. But it’s clear the Trump team is going to press every angle, even if they contradict themselves in the process. From Trump’s POV, what’s to lose?

          • paul lukasiak says:

            Trump’s lawyers have consistently treated the documents as “potentially” personal — emphasizing the (highly doubtful) assertion that a President’s assertion that a document is personal cannot be contested, and that a President also has complete control over whether a document is classified or not.

            The ultimate game may be to throw out ALL the evidence, including classified documents, based on the theory that all the documents were Trump’s personal property, and that the DoJ’s subpoena was illegitimate.

            • Arteberry says:

              Though I gag at using the word “strategy” here, there’s no question that Trump’s “strategy” has from the inception been based on a claim that, in the end, virtually all the documents are his personal property. “They’re mine, not theirs…” The problem is you can’t get there from here. Executive privilege, declassification, presidential prerogative to call records personal rather than presidential—these are all canards that Trump seeks to use as stepping stones to an ultimate categorization of everything as personal. And that’s a categorization Cannon will give him, if she’s given half a chance.

              • Silly but True says:

                I’ve thought a (slightly) different approach: Trump seeks privilege determination not within confines of Presidential Records Act, but beyond it within his Constitutionally-originating case law “Executive Privilege.”

  7. Silly but True says:

    Dearie’s example is great to highlight part of the whole problem here:
    “If it’s in Department of Justice possession, either produce it or make a representation it’s in DOJ possession.”

    There are several implications here that get to heart of a possibility of NARA (or DoJ) stretching specific items perhaps too generally.

    _IF_ the government already has that letter, then Trump’s version is not NARA-able; that government version (which also in fact appears to be the signed version while Trump’s seized version might not be) serves to fulfill the NARA obligation of Federal Records Act or Presidential Act. There is zero question of Trump’s version being somehow “a stolen government record.” The government has its necessary record of this. Additionally, Trump’s unsigned version of that letter could _additionally_ be a private record under the PRA, and in other case, that record could also be an Executively-privileged document regardless of whether it is Trump’s private personal copy of the document that the government also has, and that record with its association to legal matter could also be something that falls under attorney-client privilege. I would argue it could also even serve as a Presidential Record as well, but in this case would be discharged as a convenience copy not needing to be transferred to NARA when stacked against DoJ signed original that is possessed by the government.

    This specific document seized from Trump apparently comprising an unsigned copy of which such unsigned copy might never have been sent out in its unsigned form could check several boxes and that’s the fundamental origination for Dearie’s incongruities.

    But regardless, NARA only needs one version, and absolutely doesn’t require unsigned convenience copies of a record that has a signed final and original version which it looks like it has it through DoJ in the final signed form.

    • Shadowalker says:

      “ but in this case would be discharged as a convenience copy not needing to be transferred to NARA when stacked against DoJ signed original that is possessed by the government.”

      That only applies if the copy(s) is clearly marked, which apparently that document is not.

      “ extra copies of documents produced only for convenience of reference, when such copies are clearly so identified.”

      • Silly but True says:

        No. Marking falls within NARA’s administrative processes in NARA’s records acts application, not any statutory requirement imposed on individual copy recipients; it is not Trump’s affirmative obligation to mark his copy as a copy.

    • Shadowalker says:

      One other problem. the courts have consistently held that privilege either attorney-client or executive cannot be used as a shield when it is evidence of a crime. The execution of the search warrant was of a crime scene.

      • Silly but True says:

        Warrants are not a fishing expedition. Any crime-fraud exception would apply to contents of the record supporting (or not) the specific allegations of the warrant.

        We also know this letter does not contain evidence of crime if it was sent to DoJ: DoJ would have sent the FBI to arrest upon receipt of the letter evidencing any crime if it contained any such information as it would be its own probable cause; they actually don’t have need for any copy if they already have a copy.

    • paul lukasiak says:

      NARA may (or may not, that’s a dubious contention) need only one copy, but the copy it most needs is the one used/reviewed by the President. The LACK of notes on a Presidential review copy can also hold significance, and thus a copy sitting in an agency office somewhere is not the same thing as the actual document that was presented to the President.

  8. Commentmonger says:

    An excellent example of Spooky Action at a distance!! Shrodinger’s Document.

    But in this case, it involves a Trumpian Operator, Wave Disfunction, and Energy. Too much energy to think about. I am tired of all the whining.

    >>” Dearie indicated that there’s one letter of the documents discussed so far that Trump has claimed is a personal document but over which he has claimed Executive Privilege.

  9. Christenson says:

    Hi EW website engineers!
    I see we have a new “twitter” feed on the page, which is very interesting; I hope it is still in progress…I’d like to be able to jump directly to the tweets being shown, especially for pictures, and it would be good if the text wasn’t cut off quite so soon so I didn’t have to hunt down the tweet to figure out what the tweet said.
    This is the view from a Win10 laptop running Firefox 105.0.3.
    Oh, and thanks for the site!

      • Christenson says:

        I did not realize that the time field and the date field were links to the tweet; call that non-discoverable user interface design! (Also, why do we need both a date and a time? If it’s new, 2h ago is good, if it’s yesterday, just use the date)

    • Christenson says:

      A further website engineering note: The ‘home’ page, http://www.emptywheel.net, is still indicating 0 comments on EW’s latest post tonight, in spite of me re-loading the page several times and there being lots of comments. Not sure if this sort of picayune precision is helpful or not.

  10. CitadelOfRicks says:

    Trump is winning, we’re arguing about “stupid arguments”, “incoherent motions”, “mistaken filings”, “wrong process”, but not that he stole national secrets for profit.

    [Welcome back to emptywheel. Please use the same username each time you comment so that community members get to know you. “CitadelOfRicks” is your third user name; you have also commented as “jeremy” and “Jeremy Daw.” Please advise by reply below if “CitadelOfRicks” is the unique username you wish to use here on forward. Thanks. /~Rayne]

    • earlofhuntingdon says:

      We don’t know if or how Trump kept these documents for profit, in the monetary sense. The national security issues are being addressed. (See, Marcy’s latest post.) As for your dismissal of procedural rules, let us know how you feel about those next time you’re a defendant.

  11. Kevin Hayden says:

    I was under the impression that the Trump team intent was to delay more bad news till the midterms are passed, so he can then proclaim himself ‘King of the World !’ just before he slips off his bubblewrap raft and drowns.

    Hard to tell if my observation skills are superior to my wishful thinking skills, tho…

  12. Silly but True says:

    There is another reason why Dearie’s incongruity observation should be expected; he’s trying to sort a box of plums, apricots, and perhaps pluots into either just plums or apricots.

    No one ever sat down to fit the concepts of Attorney-client Privilege, Presidential-Executive-Privilege, Presidential-Records-Act-Statutory-Privilege, and Presidential-Records-Act-Statutory-Private-Record all together like a puzzle having contiguous boundaries and without any overlaps.

    Attorney-client-Privilege is arguably the oldest or one of the oldest common law constructions in America’s legal system, predating English Common Law all the way back to the ancient Greeks.

    Presidential-Executive-Privilege has been an ever-evolving doctrine of legal theories that’s only really started getting fleshed out with any real detail in wake of US v Nixon.

    The Presidential Records Act was established as a snapshot in time around its circa 1978 establishment, and hasn’t particularly tracked since or been updated insofar as its ideas of privileged and private records. PRA itself was an attempt to codify an orderly process by which privileged documents can ultimately be disseminated to public, and which recognized no interest in a President’s private records, but PRA’s focus was largely resolving how to get records to the Public.

    To any extent that coordination between these categories was even carried out, it’s pretty much only limited to PRA’s statutory consideration of PRA’s privileged vs. private records.

    It’s not like anyone from on high saw fit to cross-reference all of the conditions for all of these categories to make sure there could not ever possibly be any overlap.

Comments are closed.