In Both Bannon and Stolen Document Cases, Trump’s Associates Claim He Is Still President

Update: Judge Carl Nichols has sentenced Steve Bannon to four months in jail but has, as I predicted, stayed the sentence pending Bannon’s appeal. 

Twice in a matter of hours, filings were submitted to PACER in which lawyers interacting with Trump claimed the former President still exercised the power of President, well past January 20, 2021.

Accompanying a response to DOJ’s sentencing memo for Steve Bannon, for example, his lawyer Robert Costello submitted a declaration claiming that because Bannon had appeared before Congressional committees three times to testify (in part) about things he did while at the White House, he was right to expect that the January 6 Committee would treat him the same way — for events that long postdated his service in the White House — as they had for topics that included his White House service,

It’s not just that Costello is claiming that Bannon is claiming actions he took three years after he left the White House could be privileged. Just as crazy is Costello’s claim that this subpoena came “during the Trump Administration.”

Nuh uh. That guy was not President anymore in October 2021, when Bannon was subpoenaed.

More interesting are DOJ’s explanations for disputes between them and Trump over the documents he stole.

Best as I understand, this table shows the disputes, thus far.  (Trump’s attorney-client claims are those documents not mentioned here, though I’ve put question marks for the last three documents because there’s a Category C that may include some of those.)


As the government notes in its dispute of Trump’s claims, he identified most of these as personal, even documents that were solidly within his duties as President. This extends even so far as a letter the Air Force Academy baseball coach sent Trump, item 4.

The last of the nine documents (4) is a printed e-mail message from a person at one of the military academies addressed to the President in his official capacity about the academy’s sports program and its relationship to martial spirit. The message relates at a minimum to the “ceremonial duties of the President” (44 U.S.C. § 2201(2)) if not to his Commander-in-Chief powers.

The most important of those may be the clemency packages.

Six of the nine documents (2, 3, 7, 8, 12, 13), are clemency requests with supporting materials and relate to the President’s “Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment.” U.S. CONST. Art. II, § 2, cl. 1. Those requests were received by Plaintiff in his capacity as the official with authority to grant reprieves and pardons, not in his personal capacity.

For reasons I’ll return to, I think DOJ now believes that whatever document had classification markers in the packet that included clemency for Roger Stone and some kind of information about a French President is no longer classified. So the determination regarding whether Trump can treat pardons as personal gifts is likely to affect the ultimate resolution regarding the Stone clemency document, too.

But for those before the parties, Trump is claiming that people made personal requests for pardons of him, not requests to him in his role as President. That’s a dangerous premise.

More contentious still are Trump’s claims of Executive Privilege over four documents. Two pertain to his immigration policies. With that claim of Executive Privilege, he’s basically attempting to keep deliberative discussions about immigration out of the hands of the government.

Crazier still, though, are two documents that must reflect the operation of his post-presidential office. Both sides agree that item 15 — “meeting requests for your approval” — and item 16 — “Molly’s questions for POTUS approval” — are personal, even in spite of the reference to “POTUS.” Likely, they reflect the fact that Molly Michael, who had been Trump’s Executive Assistant at the end of his term, and who continued to work for him at Mar-a-Lago, continued to refer to him as “POTUS” after he had been fired by voters. That’s not unusual — all the flunkies surrounding Trump still call him President. But that means those two documents actually reflect the workings of Trump’s office since he left the White House.

And Trump has claimed Executive Privilege over them.

That’s ridiculous. But it’s tantamount to trying to suggest that anything involving him, personally, still cannot be accessed for a criminal investigation. Or maybe it reflects that he really, really doesn’t want the government to retain these two seemingly innocuous records.

As DOJ notes in their filing, even if both sides agree that these records are personal, DOJ can still argue they have cause to retain the documents for evidentiary purposes.

Although the government offers its views on the proper categorization of the Filter A documents as Presidential or personal records as required by the Order Appointing Special Master (ECF 91, at 4) and Amended Case Management Plan (ECF 125, at 4), that categorization has no bearing on whether such documents may be reviewed and used for criminal investigative purposes and does not dictate whether such documents should be returned to Plaintiff under Criminal Rule 41(g). Personal records that are not government property are seized every day for use in criminal investigations. And the fact that more than 100 documents bearing classification markings were commingled with unclassified and even personal records is important evidence in the government’s investigation in this case.

As DOJ noted in their 11th Circuit Appeal (filed after reviewing these records),

Moreover, unclassified records that were stored in the same boxes as records bearing classification markings or that were stored in adjacent boxes may provide important evidence as to elements of 18 U.S.C. § 793. First, the contents of the unclassified records could establish ownership or possession of the box or group of boxes in which the records bearing classification markings were stored. For example, if Plaintiff’s personal papers were intermingled with records bearing classification markings, those personal papers could demonstrate possession or control by Plaintiff.

Second, the dates on unclassified records may prove highly probative in the government’s investigation. For example, if any records comingled with the records bearing classification markings post-date Plaintiff’s term of office, that could establish that these materials continued to be accessed after Plaintiff left the White House.

These two documents, which both sides seem to agree reflected Trump’s office workings after he had left the Presidency, were probably intermingled with classified records. As DOJ notes, that likely shows that either Trump and/or Molly Michael had access to these classified records after neither had clearance to do so anymore.

Which might explain why Trump is trying to withhold these documents: because it is evidence not just that he continued to access stolen classified documents after he left the Presidency, but that he treated classified documents in such a way that someone else was able to too, which could be charged as another crime under the Espionage Act.

As I noted, Trump is now claiming that DOJ got some of these wrong, so it’s possible they’re rethinking their claim that Trump continued to be entitled to Executive Privilege as a private citizen. The claim of Executive Privilege over something both sides agree doesn’t pertain to the Presidency would just be another form of obstruction.

But in all phases of his post-Presidential efforts to avoid accountability, all those around Trump continue to indulge his fantasy that he still retains the prerogatives of the office.

Update: Trump has filed his dispute about DOJ’s filing. The highlighted cells in the table above reflect the changed determinations. Notably, Trump has withdrawn privilege claims regarding the likely office records that post-date his move to MAL. But he added EP designations to clemency packages.

My suspicion is that this reflects a changed strategy about how to avoid accountability for the most things, not any real dispute raised before DOJ filed.

64 replies
  1. Geoff says:

    The docs I’m most curious about is 17 and 18. I believe Kurt Hilbert was the attorney and 12/31 was the file date that Judge Carter mentioned on the Georgia case earlier this week in the Eastman order.

    [Welcome to emptywheel. Please use a more differentiated username when you comment next as we have several community members named “Geoff” and “Geoffrey.” Select a unique username with a minimum 8 letters. Thanks. /~Rayne]

    • emptywheel says:

      I agree they’re really interesting. I hope that J6C and DOJ and Fani Willis subpoena them specifically, especially in light of Judge Carter’s ruling that related communications were crime-fraud excepted.

      • Kathy B says:

        Today’s 4 mo sentence for contempt (not forgetting there are more and bigger cases to come folk) was better recourse than I’d hoped in terms of “deterring others”. Bannon is of course doing an Alex Jones at the moment.

        Very curious about atty Schoen’s statement in court that he worked to help Bannon evade the subpoena because “principles.”

        Looks like a crime-fraud exception just waiting for DOJ to pick up for various charges related to 1/6 (and maybe more.)

    • FL Resister says:

      This Kurt Hilbert (from

      Voter suppression lawsuits Kurt R. Hilbert worked on: Trump v. Kemp (Decertification) 12/31/20, Federal, Trump Lost.
      Still v. Raffensperger (Decertification) 12/12/20, State, Trump Lost
      Trump v. Raffensperger (Election Contest) 12/04/20, State, Trump Lost
      Boland v. Raffensperger (Certification) 11/30/20, Trump Lost

  2. Gail Mickley says:

    I would think Trump’s claim that clemency, or pardons, were requested of him “personally” would nullify said pardons/clemency, if granted.
    He is not the King.
    Seems to me his attorneys don’t often think about the bigger picture when they make their arguments.

    • bmaz says:

      And, yet, that is exactly what Article II, Section 2, Clause 1 specifies.
      The pardon power is specific to the President and completely plenary.

      • smf88011 says:

        That would be that the Office of President has the power to pardon and NOT the person holding said Office. Taking that further means that the letters requesting pardons/clemency are written to the Office of the President and are therefore not personal in nature.

        • bmaz says:

          Uh, I don’t care what materials you have handled in your life, the President is the President of the United States. To argue otherwise as to Article II, Section 2, Clause 1 is beyond silly. But, no, of course it does not make anything he touches “personal”.

        • Rayne says:

          Hold up. From Article II Sect. 2 of the Constitution:

          Section 2
          The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States; he may require the Opinion, in writing, of the principal Officer in each of the executive Departments, upon any Subject relating to the Duties of their respective Offices, and he shall have Power to grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment. ..

          The President. He.

          The power does not belong to the “Office of the President” but to the person who is sworn in. This still does not make letters requesting pardon/clemency personal because the presidency and its Article II powers are not personal but presidential; the letters to the president addressed to the White House are presidential records.

          • earlofhuntingdon says:

            The powers are personal to the person only while s/he holds that office. Trump and his would be successors seem bent on making the claim that the office and the powers are for-life.

            • Rayne says:

              The word “personal” shouldn’t be used at all in reference to the Article II powers. They are presidential and imbued upon a particular citizen with swearing in, but not personal as in those attributes which are inherent to the person before, during, and after office — ex. like a letter from a friend to the person whose job is POTUS, sent not because they are POTUS. That’s personal.

              The Constitution also makes zero allowance for permanent possession of Article II powers.

              • earlofhuntingdon says:

                Of course, but then you’ve read the Constitution. Like BushCheney, this crowd is attempting to create its own reality. Thankfully, there are those who call them out on their bullshit.

                • Stephen Calhoun says:

                  Is it possible that TFG cannot understand the categorical difference between the President/Presidency and the person who-is-President? . . .seems so!

                  It seems to me, for example, that TFG thought to some degree that to be ‘president’ is to also be the CEO and owner of the ‘USA.’ Did he believe the USA possessed assets with which he could make deals?

                  Or, that he understood a ‘president’ is a kind of ‘king.’ These kinds of category errors seemed rife in his outlook about being head of the Executive Branch.

                  Yet, here we are—I wonder if TFG even knows what a category error is! His practical understanding of the Constitution seems modest.

                  • Dave_MB says:

                    You’re analyzing it as if you think that TFG is trying for an accurate analysis as opposed to what can he do to get away with the most stuff and not be held accountable.

                  • timbo says:

                    This becomes more of a problem when officers of the court (eg Trump’s lawyers) start foisting this nonsense in court.

          • Shadowalker says:

            It doesn’t matter how they are addressed but rather the subject matter and how they relate to his official duties while in office.

            Presidential records are defined by statute.

            (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.

            • Rayne says:

              (ii) personal records — you mean like a letter from a friend to the person whose job is POTUS, sent not because they are POTUS but on the basis of friendship.

              I realize this is an extreme abstraction in Trump’s case since he has no friends, only participants in prospective/anticipated/current/concluded mutual transactions.

              The rest of the items in (2)(B) apart from (ii) personal records are government property.

              • Shadowalker says:

                If any of the contents of the letter were used in the performance of his duties. Then yes. It wouldn’t matter if it was addressed to “whom it may concern” so long as the letter (or any portion) was involved in any way with an official action he took while in office.

  3. Peterr says:

    From the DOJ filing, quoted above:

    Six of the nine documents (2, 3, 7, 8, 12, 13), are clemency requests with supporting materials and relate to the President’s “Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment.”

    Including those last five words was a nice touch. The shiv is so carefully sharpened and so nicely placed that you don’t notice it going in until the hilt touches the back.

    • says:

      Peterr –
      with these caveats and qualifiers:
      – I may be misreading your statement, common for a dyslexic, so my apologies, if so; and
      – If I learned anything in law school about interpreting statutory or constitutional text, which could certainly be debatable; and
      – While impeachment is rare, there may actually be caselaw examining this, but I did not research it…

      I think the following would be how the “in cases of impeachment” phrase would be interpreted by a court:
      IF [impeachment] case,
      THEN President has no power to grant reprieves or grant pardons.

      that is,
      *IF* the person seeking a pardon was not ‘convicted’ in a judicial court of law* or by some other judicial process (e.g., administrative matter) but instead was convicted by the US Senate in an impeachment case (or perhaps some other type of exercise of impeachment, if one exists),
      *THEN* the President cannot wipe away this ‘conviction’ or lower any ‘sentence’ (if relevant) that the IMPEACHED-but-NOT-(federal*)-COURT-OF-LAW-convicted-person may have been given.

      * ‘Offenses against the United States’ ensures these pardons only involve federal cases, not those from any state court

      I do not think the sentence would be read to mean: ‘If the person who occupies the office of the Presidency happens to be impeached by the House, the President is no longer is allowed to pardon anyone.’

      Is the latter what you were addressing here? My ability to infer is terrible and is the main reason I started reading Marcy’s amazing journalism. She connects dots so well and exercises formal logic with such dexterity, it is not only educational, but inspiring!

      • Thorvold says:

        I think that your reading of the pardon power is correct.

        I think Peterr is implying that your alternate meaning ‘If the person who occupies the office of the Presidency happens to be impeached by the House, the President is no longer is allowed to pardon anyone.’ is also in there as the hinted subtext to get a verbal dig in at Trump.

        • bmaz says:

          Good grief, it means what it says, i.e. an impeachment conviction cannot be pardoned away. The key word is conviction, which must happen in the Senate.

        • Peterr says:

          What I meant was that the DOJ was subtly reminding Trump that he has been impeached. Twice. They could have simply referred to the president’s powers to pardon, but by citing the full text they used a word — impeachment — that surely brings back ugly memories to Trump. I wasn’t talking about the power to pardon at all, but simply acknowledging the fine rhetorical choice of words by the DOJ.

          As for the power to pardon, Bmaz is right about the meaning of the text. A president can’t pardon away an impeachment conviction.

          • Shadowalker says:

            I think you may be over reading intent. That’s simply a verbatim quote from the Constitution which includes the limitations.

            • Peterr says:

              The whole of clause 1 that they cited reads as follows:

              The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States; he may require the Opinion, in writing, of the principal Officer in each of the executive Departments, upon any subject relating to the Duties of their respective Offices, and he shall have Power to Grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment.

              But they didn’t quote the whole clause. They quoted only the last portion of it. For the purposes of their filing, they could simply have quoted “Power to Grant Reprieves and Pardons” as that would have made their legal point. Instead, they made the affirmative choice to include the language about impeachment.

              As one who deals with public rhetoric on a daily basis, I can’t see this as a simple “let’s quote the constitution” thing. They chose which portions of the entire clause to cite, and they chose to mention impeachment — even though that has nothing to do with what they were talking about.

              This was deliberate and well-chosen.

              • Shadowalker says:

                I don’t think the defendant (prosecutors) would be so childish in including the proper end of multi subject clause to use as a dig against the plaintiff, as it gives Trump’s side something to complain to Cannon about.

                The full quote from the filing.

                “a. Six of the nine documents (2, 3, 7, 8, 12, 13), are clemency requests with supporting materials and relate to the President’s “Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment.” U.S. CONST. Art. II, § 2, cl. 1. Those requests were received by Plaintiff in his capacity as the official with authority to grant reprieves and pardons, not in his personal capacity.”

  4. Waban1966 says:

    Given how “conservative”/methodical (in the legal tactics and assertions sense) DOJ is here (rightly), the “argument” that “if’ the documents were intermingled or postdated” has to mean that they in fact were intermingled and/or postdated (depending on the document).

    Also, the Costello piece of paper was mindboggling horrible. Starting from the font and formatting no lawyer uses. To sting Brannon “was never contumacious.” If To paragraph 9, using “silly,” “frivolous,” and that last sentence. That paragraph almost seems like Brannon wrote it, the whole thing could actually be an open letter to Trump’s other lawyers about what Brannon and Costello would/will say. And probably deliberately it is entitled “response” and not “declaration” or “affidavit,” with no statement of it being under pains and penalties of perjury.

    Makes me think that real audience for this document is someone else besides the court. Indeed, if Nichols relies on it to reduce the sentence, it might actually help a government counter-appeal on sentencing because the document is facially lacking in credibility.

    • Buzzkill Stickinthemud says:

      Your comments on the Costello document made me curious, so I read it and the attached Trump letter. Thanks a bunch. Now I’ve gone through the looking glass and have to figure out a way back.

    • Justlp34 says:

      Now I too am curious about the Costello document you are referencing, but a quick Google search did not find anything. I also guessed that you meant Bannon, not Brannon, but maybe that is an incorrect assumption? Could you provide a bit more context or a document date that i could use to find it?

  5. Badger Robert says:

    Isn’t this part of the myth making effort? Isn’t this Trump’s version of the stab in the back?
    Isn’t this an effort to build the myth that Trump won, so that anything done to put his Republican successor in power is justified?

  6. Doug Kane says:

    Dearie’s response to Trustie: “The Special Master notes Plaintiff’s counsel’s letter of October 20, 2022 151 . To the extent Plaintiff asserts that the government’s letter of the same date 150 “is not fully accurate as to the Plaintiff’s position on various documents,” any submission by Plaintiff to the contrary is now untimely pursuant to my Order of October 7, 2022 138 , which required the parties to submit their final log of positions regarding certain Filter Materials by October 20, 2022. Plaintiff may submit his position no later than the close of business today, October 21, 2022. Signed by Special Master Raymond J. Dearie on 10/21/2022.”

  7. earlofhuntingdon says:

    Trump is claiming that people made personal requests for pardons of him, not requests to him in his role as President. That’s a dangerous premise.

    L’etat c’est moi. President Kari Lake would follow that practice, too, a good indicator the DoJ should not let it slide without correction, along with the president-for-life schtick embedded in continuing to refer to Trump as president.

  8. John Paul Jones says:

    Possibly OT: WaPo is reporting that Devlin Barrett has another “exclusive.” The nuclear documents Trump was holding onto concerned Iran and China. I can’t get to the article (paywall) but I wonder who Barrett’s source was on this.

      • John Paul Jones says:

        Thanks for posting. It seems clear that once again, Barrett’s FBI sources are talking to him. I noticed this –

        “and a key witness told the FBI that he moved the boxes at Trump’s instruction.”

        – which I do not think has been reported this specifically before. If so, it should be possible for the source’s bosses to figure out who might be leaking. OTOH, the source for this detail could be the person who moved the boxes.

    • BirdGardener says:

      So Trump wants to distract from today’s filings, eh? Always good to know when he’s running scared.

      Don’t fall for the distractions!

      • Ginevra diBenci says:

        My reaction too. I read the whole thing. The “news” component is limited to a sentence or two, rather vaguely tying Devlin Barrett and colleagues’ earlier “nuclear secrets” reporting into a specific reference to Iran’s nuclear program. And maybe China. There’s very little there there.

        This reads to me like another Trump-side leak intended for spinning into a “government” leak, or/and buffering against future specific revelations about what Trump stole. Perhaps a side bonus here is that Trump will be able to point to this and say that *he* at least took Iran’s nuclear threat seriously–so seriously he squirreled away secret documents about it for future reference, no doubt for his intended campaign to rid the world of nuclear weapons and bring peace to all.

        • P J Evans says:

          That was why I didn’t bother to read farther than the byline. If there’s any “there” there, we’ll find out from more reliable sources.

      • John Paul Jones says:

        Thanks for the link (and I wish I knew how to do that trick!). As others have suggested, there’s very little news in the report. Here’s a breakdown of all the source mentions:

        “according to people (1) familiar with the matter.”
        “According to (1) these people, who spoke on the condition of anonymity to describe an ongoing investigation.”
        “After this article published online, Trump posted on social media, decrying what he called leaks ‘on the Document Hoax’ and suggesting that the FBI and the National Archives and Records Administration were trying to frame him.”
        “The people discussing the case (2) would not say if that intelligence related to Iran, China or some other nation.”
        “The people familiar with the matter (1)”
        “According to people familiar with the investigation (3), security camera footage showed boxes being carried from the storage area after the May subpoena was issued — and a key witness (3a?) told the FBI that he moved the boxes at Trump’s instruction.”

        (1) could be Trump-affiliated; except for the tag phrase “ongoing investigation,” which implies an investigative source, but does not say so. Trump’s instantly commenting may likewise suggest he was waiting for a report he knew was coming.

        (2) could be anyone, particularly Trump-affiliated lawyers, though again, phrasing implies an investigative source without saying so.

        (3) could easily be Trump-affiliated, but again implies an investigative source or the supposed witness themself.

        In other words, even though Barrett has FBI sources who leak to him, there is almost nothing new here and all of it could have come from Trump’s camp. As well, it could be the case that Barrett had these details when the Post first revealed that some documents were “nuclear related,” and he simply sat on them until he or his editors thought the story could use a bit of goosing before it got mired in court reporting.

  9. Alan Charbonneau says:

    “More contentious still are Trump’s claims of Executive Privilege over four documents. Two pertain to his immigration policies. With that claim of Executive Privilege, he’s basically attempting to keep deliberative discussions about immigration out of the hands of the government.”

    Sorry for being dense, but I don’t understand this. If Trump had “deliberative discussions about immigration” with his staff, aren’t those subject to EP? Are they US Agency docs he shouldn’t have a right to?

    • earlofhuntingdon says:

      EP would not bar sharing information within the executive branch.

      It permits non-disclosure to the judicial or legislative branches, with key exceptions, which include furthering a criminal investigation.

    • says:

      Just now noting that Earl did in 50 words what I do in 500 to 1000….

      ‘Deliberative process’ is the back and forth between federal agency or executive office staffers and decision makers that involve how the office/executive reached a particular decision — e.g., what evidence was weighed and how much weight was given to different pieces of evidence, whether expert scientists were consulted, whether the military brass were in agreement, whether the decider-in-chief had the correct-point black Sharpie in his hand at the time :), etc. Under FOIA, this type of information is not allowed to be disclosed to the public, for fear it would chill the speech of the staff and deciders, and make their deliberations and decisions less informed, less rational, and less supported by evidence or intelligence. The law assumes, of course, that decisions are actually DELIBERATED over.

      ‘Deliberative process’ and the ‘pre-decisional’ documents and discussions that were exchanged during the deliberative process are also shielded from an opposing party in a civil lawsuit during discovery. It’s not a complete ban, but a ‘rebuttable presumption’ that can be overcome in court for a compelling reason. The party who wants to see the info has the burden to prove their is a compelling reason for the information to be disclosed to the litigant, or the press/the public in the case of FOIA. ‘Factual information’ like charts, statistics and the like are not supposed to be shielded from view, but I’m not sure this case law is clear on this (?).

      Executive Privilege given to the US President, when he is acting in his professional and not-personal capacity, has two parts: the deliberative process privilege (just discussed) and the ‘presidential privilege’ which covers direct communications with the (sitting / incumbent, I assume) President, which according to 2019 D.C. Circuit case law includes memos prepared by lawyers from CIA, Pentagon, and NSC — both PRE and POST decisional! and includes documents authored by, or soliticited and received by, the President’s aides. I’ve not compared the language, like Marcy certainly would do in her thorough analysis, but I think this language actually mimics the language in the PRA. If anyone wants to research (or Sheppardize, which I prob should have done before writing,) the case is (you guessed it, our old friend Litton): Judicial Watch v. U.S. Dept of Defense (O’Bama’s, of course), 913 F.3d 1106 (D.C. Cir. 2019). It shielded Litton from getting the ‘kill Osama Bin Laden’ docs, if I’m not mistaken.

      In 1974, the Special Counsel was able to overcome this presumption of non-disclosure in a civil court case the SC/DOJ brought to force Nixon to honor a subpoena of his White House tapes. The SC won and successfully obtained a court order telling Nixon to hand over his tapes, by demonstrating the compelling need of an investigation into criminal conduct of the president and his aides. (sound familiar?)

      So, I think you get around the priviledge if –
      1) not invoked by incumbant president, but instead by TFG (at least Dearie thinks so!)
      2) seeker can demonstrate compelling interest to a court
      3) the decision being made involves the planning of a crime or how to obstruct the investigaation of potentially criminal conduct (did Nixon make the claim that he doesnt want to turn them over becuase they reveal discussions at the white house on how to obstruct the DOJ from investigating Watergate, or did I dream that up myself?)
      4) The President was acting in his personal capacity and not his professional capacity (which solves the dispute in the comments on this thread up top).
      Unclear to me if exempt from public disclosure is (sorry for non-parallel structure):
      5) proving the decider-in-chief actually did not DELIBERATE over decisions
      6) facts and statistics that are pre-decisional and used in deliberations
      7) post-decisional docs, so far in the future including after the president leaves office
      Covered, but I didn’t mention:
      8) anything covered in a newer case that overrides the 2019 D.C.Circuit decision I didn’t Sheppardize

      • Ginevra diBenci says:

        By Litton, I think you mean Fitton, as in Tom Fitton of Judicial Watch.

        This comment brought to mind the supposedly “pre-decisional” memo behind Barr’s summary of the Mueller Report, which upon its release was revealed to be more post- than pre-decisional, in the sense that it contemplated ways for Barr to cover his ass.

      • Alan Charbonneau says:

        Thank you and earlofhuntington for the explanations. It starts to get confusing. I remember getting the Oath Keeper and the Proud Boys mixed up. All things Trump lead to confusion 😁

      • Shadowalker says:

        “ but I think this language actually mimics the language in the PRA. ”

        Under the PRA all presidential documents are restricted access for 5 years after the archive has taken control of the records, except those documents the president (while he is still in office) or as a former president declares executive privilege which then extends the restricted access to those documents till a date set by the president (not to exceed 12 years). Court action either criminal or civil, legislative inquiries and a current executive need for the documents are excluded from these restrictions. (the last two only if the documents cannot be retrieved elsewhere)

      • Shadowalker says:

        If it helps. I just read Trump team’s latest letter to Dearie.

        This case is based solely on the PRA and the EP the act spells out. Any other instances of EP as courts have ruled are specific to the current office holder and are not in play here.

        “As articulated in the Special Master’s Order dated October 7, 2022 (ECF 138) the parties were directed “to confer and attempt to resolve or narrow the disputes regarding the claims of executive privilege and designations pursuant to the Presidential Records Act.””

        • earlofhuntingdon says:

          Where do you think EP comes from? Its source is the common law, not the PRA, which only deals with when it is asserted.

          • Shadowalker says:

            The point is the Special Master review is only concerned with the PRA and disputes of EP and the “designations” of specific documents as they are are defined by the PRA.

            You are referring to the Deliberative process privilege which traces its roots back to the English crown privilege, there is another privilege based on the Separation of powers. Neither of these privileges apply to a former chief executive unless they are asserted by the current executive. This was recently upheld by the current SCOTUS (last January) when it denied his appeal to block NARA from giving the Jan 6 committee access to his presidential records that are in their custody and care,

            • earlofhuntingdon says:

              No, I’m not. I’m referring to “Claims of constitutionally based privilege against disclosure.” 44 USC 2208. Trump, too, was careful not to specify which privilege he was asserting – or that he could assert.

              The Constitution generally does not explicitly refer to such privileges. EP, for example, is a power of the president inferred by the courts. Attorney-related privileges are based on both the Constitution and statute. Judge Dearie wanted Trump’s arguments regarding both, and specifically whether and why any claim of EP would bar disclosure of records within the executive branch.

              Presumably, Trump will eventually argue that the mere production of documents would violate his Fifth Amendment privilege not to incriminate himself, since his mere possession of them is either unlawful or establishes elements of a crime. Such a defense exists, but it is not absolute. His reading of it should not prevail.

              • timbo says:


                With regard to PRA specific privileges and rights of a former President, if Trump is arguing PRA privileges than that argument should have been made in DC circuit, not in Florida, as outlined in the PRA itself. So, yeah, he and his lawyers are obviously trying to delay making any specific privilege claim to a granularity that will result in them losing a ruling in Florida >or resulting in a change of venue< for as long as they can. What is really, really annoying is that delay will no doubt continue if Dearie does rule that something is possibly privileged under PRA since that would then require adjudication in DC circuit! Ugh.

                IMO DOJ has been taking their sweet time here and should have appealed for a change of venue as soon as Twitler's specious law-suit over vague privileges was submitted to Cannon. Why DOJ did not do so is a real mystery to me. The DC circuit courts are likely more versed in these interrelated investigations and they are mandated by law to make rulings about PRA records. Florida is not. So why leave this hanging in Florida for so long without strong objection from the get-go; why didn't they appeal immediately for this to be moved to DC circuit? Was DOJ convinced that they wouldn't have an appeal heard in Florida that requested such a change of venue immediately? Section 1404 seems to give DOJ the strength here to make such an appeal, correct?

  10. Chris Perkins says:

    There’ve been a couple of curious approaches by Trump and his lawyers in this whole MAL doc thing that seemed sub-optimal, and many of them only make sense in the fantasy world where he is still president. Is that the strategy, to argue these cases on the premise that he is still president? For show? For Fox News?
    Doesn’t seem like a winning strategy, court-wise. But maybe in some longer game of public imagination? So long as he can dodge/delay a real conviction is this game somehow worth playing? Personally, I just don’t see it. Maybe it’s just desperation and bad lawyering, not a real plan. But it’s a recurring impression.

    • BirdGardener says:

      If you repeat a lie often enough, (some) busy people who haven’t paused to reflect begin to believe the lie, even when they know it isn’t true. They don’t put the two parts together, comparing the lie and the truth. And if someone they respect or trust is telling/repeating the lie, they may decide the lie is the truth, despite their contrary knowledge. That’s pure gaslighting at work.

  11. Thomas_H says:

    Slightly off topic (and a good excuse to bring my user name into compliance); what are the chances the WaPo *blockbuster* about the MAL documents containing highly sensitive NDI about Iran and China coming from the trump camp itself? I think the DOJ is still showing very good discipline and not leaking to the press.

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

    • HikaakiH says:

      Temporary limited hangout which conveniently doubles as a shiny object to distract from real news on rulings adverse to Trump and his coterie.

  12. Thomas says:

    The dangerous premise.

    That Trump personally owns executive powers, like a monarch or a dictator.

    In another comment I stated it: Trump cannot assert that he owns any of the presidential records, because a declaration that he owns them and has a possessory interest in them is a confession that he stole them and obstructed their return.

    But the dangerous premise could explain his delusional belief that all of the presidential records are his property.

    Trump not only has a delusion that he is still the president, but he also has the delusion that the president personally owns executive powers.

    Aside from brain worms, Trump wants to delay the classified records case comfortably past his coronation as Speaker of the House, from which perch he can continue his work as a Russian agent.

    So his lawyers will just keep making frivolous claims to delay this “review process” that has no legal purpose at all. It’s only purpose is delay, and Trump is far past caring about any legality.

    He believes that he will, somehow, impeach and remove Biden and Harris and become president again. Because those are HIS Executive Powers and he should get them back.

    Or be arrested and held in jail while being prosecuted in one court after another for the rest of his life. Something like that (whatever!).

    • earlofhuntingdon says:

      A lifetime of manipulating the legal and tax systems doesn’t mean he’s delusional. It means he’s ruthless, selfish, and vicious, not an unusual type among the wealthy in America.

      Does he have serious mental health issues? That seems obvious. It doesn’t mean he’s delusional, any more than Judge Cannon, MTG, Kari Lake, or Ron DeSantis are delusional.

  13. soundgood2 says:

    I have a question about Bannon’s conviction. I have heard some say that a new congress could void the subpoena and Bannon’s conviction. Is this possible? I would think not, but have not heard from a reliable source. I know there are a a lot of them (reliable sources) on this site, so?

      • timbo says:

        Follow up question…

        Could an incoming Congress actively quash a referral to DOJ for Contempt of Congress, the referral having been filed with DOJ by the outgoing Congress, but prior to DOJ reaching a publicly announced indictment under the referral? I use the term “actively” as I expect that DOJ may decide to not prosecute someone for such referrals with little to no formal action by a new Congress; more interested in whether or not DOJ can proceed without subsequent Congressional backing once DOJ has got a referral in hand.

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