Trump Prosecutions: Making Tea While Awaiting the Post-Election Flood

One of the only citations any of the filings in the Trump stolen document case make to prior 18 USC 793 prosecutions — one of the crimes under investigation — is this reference to a letter that then-NSA Director Mike Rogers submitted in the Nghia Pho case. It was cited to explain that sometimes the government has to kill sensitive intelligence programs based on the mere possibility they’ve been compromised. The letter also talked about how, when things get compromised by people bringing them home from work, US intelligence partners grow reluctant to share information. The letter was cited even though the letter itself was never docketed online (it was liberated at the time by Josh Gerstein).

In other words, someone knew to reference something really obscure to make a highly inflammatory argument about the ways that Trump has already done real harm to US national security.

One of the prosecutors in the Nghia Pho case was Thomas Windom, the MD-based AUSA brought in to lead the investigation into Trump’s attempts to steal the election.

Obviously, lots of people at DOJ’s National Security Division would also know that case, and so presumably the letter, well. I wrote about the important lessons DOJ seemed to take from the compromises that the Shadow Brokers leak (in part, that it doesn’t matter why someone brought classified documents home, they can do catastrophic damage to national security anyway). But I raise it here because of an assertion WaPo made when they broke the news that David Raskin — who prosecuted a number of terrorism cases that faced really difficult classification complications — was involved in some way in the stolen document case.

Just two weeks ago, Raskin won a guilty plea in a case with parallels to the Trump case — a former FBI analyst in Kansas City who authorities say took more than 300 classified files or documents to her home, including highly sensitive material about al-Qaeda and an associate of Osama bin Laden.

It’s actually unclear how much the case of Kendra Kingsbury resembles Trump’s. She was charged over three years after being fired from the FBI for the theft, charged with just Secret documents and only two counts of 18 USC 793e (supported by ten documents each), which made getting the plea far easier than charging her for any Top Secret documents or charging her for all twenty individually. According to the docket, the case never started the CIPA process. Her change of plea documents have not been docketed (and so don’t explain the five month delay in sentencing).

All of which is to say the Kingsbury prosecution, like the Pho one, avoided a lot of the difficulties a Trump case would pose, particularly given how unlikely it is that Trump would plead guilty. The Ahmed Ghailani, Zacarias Moussaui, and other early SDNY terror cases make far better precedents for the classification problems that a prosecution of Trump would pose.

Besides, as the WaPo reported, that’s not why Raskin was first brought to DC; he was brought there, like dozens of other prosecutors, to help with the flood of cases after January 6.

Justice Department officials initially contacted Raskin to consult on the criminal investigation into the Jan. 6, 2021, assault on the U.S. Capitol. But his role has shifted over time to focus more on the investigation involving the former president’s possession and potential mishandling of classified documents, the people familiar with the matter said.

I raise all that because we’re beginning to get a whole bunch of new tea leaves in the various investigations into Trump.

CNN had a detailed report yesterday, describing that DOJ was prepping for post-election activity — as well as the likelihood that Trump will declare his candidacy for 2024 out of a belief it’ll shield him from indictment.

As it describes, in addition to Raskin, DOJ has brought on a former SDNY lawyer with extensive experience on conspiracy cases, David Rody, as well as added a high-ranking fraud and public corruption prosecutor and an appellate specialist, neither of whom they name.

Top Justice officials have looked to an old guard of former Southern District of New York prosecutors, bringing into the investigations Kansas City-based federal prosecutor and national security expert David Raskin, as well as David Rody, a prosecutor-turned-defense lawyer who previously specialized in gang and conspiracy cases and has worked extensively with government cooperators.

Rody, whose involvement has not been previously reported, left a lucrative partnership at the prestigious corporate defense firm Sidley Austin in recent weeks to become a senior counsel at DOJ in the criminal division in Washington, according to his LinkedIn profile and sources familiar with the move.

The team at the DC US Attorney’s Office handling the day-to-day work of the January 6 investigations is also growing – even while the office’s sedition cases against right-wing extremists go to trial.

A handful of other prosecutors have joined the January 6 investigations team, including a high-ranking fraud and public corruption prosecutor who has moved out of a supervisor position and onto the team, and a prosecutor with years of experience in criminal appellate work now involved in some of the grand jury activity.

CNN reports that DOJ is even considering whether to appoint a special counsel, though the implication seems to be that that would cover ongoing prosecutorial work, in the same way that John Durham was made a special counsel to shield his work from the snooping of outside oversight (which in Durham’s case led him to pursue ill-considered charges unsupported by his investigation).

I expect as other outlets (especially ones with reporters that have more closely covered the January 6 investigation) will add clarity to all this. But given everything that’s happening, with the exception of the move of the public corruption prosecutor, it’s not clear how much these developments stem from resource allocations that have been a constant feature of the post-January 6 investigation, how much DOJ is putting together a prosecution team, or even whether DOJ has deliberately selected prosecutors (aside from the public corruption one) who weren’t at DC USAO when Billy Barr made all sorts of corrupt moves to help protect Trump. There are DC AUSAs on the team; Mary Dorhmann, who is sort of a Jill of All Prosecutorial Trades, is working with Windom even while she served on the team that won one guilty verdict and one hung verdict against Capitol Police cop Michael Riley and other more pedestrian January 6 cases.

All this is happening as DOJ just locked in Kash Patel’s testimony by compelling his testimony with use immunity. WaPo’s report describes that, in addition to asking him about his claims that Trump declassified documents, prosecutors also asked about Trump’s motive for stealing documents (whether classified or not).

National security prosecutors asked Patel about his public claims this spring that Trump had declassified a large number of government documents before leaving office in 2021. Patel was also questioned about how and why the departing president took secret and top-secret records to Mar-a-Lago,

This story is as useful for its account of former Deputy White House Counsel John Eisenberg’s testimony as for Patel’s; he’s the guy who attempted to bury the Perfect Transcript of Trump’s call with Volodymyr Zelenskyy (remember that witnesses friendly to the subject of an investigation often share their testimony to help others, effectively a way to coordinate stories).

Finally, NYT reported something I’ve been expecting for some time: Trump lawyers are getting fed up with the incompetent advice of Boris Epshteyn, who is not a defense attorney but who claims to be playing a key role in Trump’s defense.

A tirade of a lawsuit that Donald J. Trump filed on Wednesday against one of his chief antagonists, the New York attorney general, was hotly opposed by several of his longstanding legal advisers, who attempted an intervention hours before it was submitted to a court.

Those opposed to the suit told the Florida attorneys who drafted it that it was frivolous and would fail, according to people with knowledge of the matter. The loudest objection came from the general counsel of Mr. Trump’s real estate business, who warned that the Floridians might be committing malpractice.

Nonetheless, the suit was filed.


The new 41-page lawsuit against Ms. James was filed in Palm Beach by Timothy W. Weber, Jeremy D. Bailie and R. Quincy Bird, members of a St. Petersburg-based law firm — and was championed by Boris Epshteyn, an in-house counsel for the former president who has become one of his most trusted advisers.


Unable to persuade the Florida lawyers to stand down Wednesday, the Trump Organization’s general counsel, Alan Garten, then took aim at Mr. Epshteyn, blaming him in an email to Mr. Epshteyn and other lawyers for the filing of the suit, said the people with knowledge of the discussion. Frustrations with Mr. Epshteyn among some of Mr. Trump’s other aides and representatives have been brewing for months and boiled over with the new legal action.

Another lawyer for Mr. Trump, Christopher M. Kise, a former Florida solicitor general, also objected to the filing of the lawsuit on Wednesday. And Mr. Trump’s legal team in New York expressed concern that the Florida lawsuit would undermine their defense in Ms. James’s case, costing them credibility with both the New York attorney general’s office and the judge overseeing the case, the people with knowledge of the matter said.

It’s fairly astonishing that someone as notoriously paranoid as Trump has not yet begun to wonder whether Epshteyn has Trump’s own interests in mind. Certainly I’ve questioned it.

But pissing off Alan Garten, especially — really one of the only stable legal presences in Trump’s life over the last six years — will not bode well for Trump going forward.

None of these details (not even the shift of the public corruption prosecutor, which I think is one of the more important developments) tell us where a Trump prosecution will start to move next week, after the election. Given all the factors — especially the resource allocations on account of the January 6 investigation and conflicts that may have been created by Trump’s past corruption — it will be impossible for anyone to understand where this is headed for some time.

But the tea leaves have finally convinced the TV lawyers that it is headed, somewhere.

81 replies
  1. Peterr says:

    The Mike Rogers letter you mention in the opening paragraph was not offered in evidence during the trial, but part of the post-verdict sentencing process. I don’t know that all the letters solicited by either the defense or (in this case) the court get docketed.

    That said, this comes straight from the Day One lecture in Handling Classified Materials 101:

    It is a fundamental mandate in the Intelligence Community that classified material must be handled and stored in very specific and controlled ways. If classified material is not handled or stored according to strict rules, then the government cannot be certain that it remains secret, Once the government loses positive control over classified material, the government must often treat the material as compromised and take remedial actions as dictated by the particular circumstances. Depending on the type and volume of compromised classified material, such reactions can be costly, time consuming and cause a shift in or abandonment of programs.

    I suspect this will be cited in future DOJ filings in the Mar-a-Lago case, as it will allow DOJ to point to something completely separate from Trump, and thus less susceptible to a “you just wrote that to politicize this prosecution” attack from Trump. Not that Trump won’t try to claim that, but pointing to a 2018 letter makes that defense easier to swat aside.

  2. jetgarden21 says:

    I expect as other outlets (especially ones with reporters that have more closely covered the January 6 investigation will add clarity to all this. {somewhere in there should be a close quote}

  3. Zirc says:

    Tangential to this blog post, Marcy, but part of the Trump tangle is “The Untold Story of ‘Russiagate’ and the Road to War in Ukraine” piece in the NYT Magazine. I was interested to know of your take on it.

    • GeeSizzle says:

      Saw that too, although it is so long I will have to wait until the weekend to read the rest of it. I got a bit peeved though at the use of “Russiagate”, even with the air quotes in the title. But I guess that is the only way that the vast majority can understand any scandal these days, by attaching “gate” to the end of some related word. The problem is that this is the preferred term by the “no collusion” team, which never uses without its best friend, “hoax.”

      While Rutenberg does mention that team Trump calls the investigation a hoax, he never seems to put the two together and mention that this is part of their propaganda now. I just don’t feel like the term is that useful. The problem is, as Rutenberg clearly lays out, the scandals all blend together, and from the start Ukraine and Russia have been at the core of everything. It’s really like the entire Trump term was one big transactional affair of Trump selling out the US to Putin for his own personal interests. How does one put a label on that?

    • emptywheel says:

      It was reasonably good. I’ve covered all those issues here repeatedly. But I’m glad the NYT gave it the time and space.

      Like GeeSizzle, I thought the invocation of “RussiaGate” to be unfortunate. I have a few other minor complaints, but far better than much of NYT’s Russia coverage in real time.

  4. bmaz says:

    “CNN had a detailed report yesterday, describing that DOJ was prepping for post-election activity — as well as the likelihood that Trump will declare his candidacy for 2024 out of a belief it’ll shield him from indictment.”

    Just another reminder that there is no law, no rule, and no norm whatsoever that indicated DOJ had to pause or wait until after next Tuesday. The sage people at CNN have never seemed to understand this fact. That line of thought is beyond bullshit. And Trump announcing he is running is no shield whatsoever.

    • EwanWoodsEnd says:

      Of course, but you can see that a good timing of the announcement of the 2024 run, just before the moment Trump gets charged, is politically astute. It will make it look that clearly, the DOJ is trying to block his candicacy since they (through these lenses) charged him as soon as he announced.
      His followers will flood the airwaves with that as a proof that he is a victim etc.

      • joeff1953 says:

        Better they flood the airwaves, streets, etc AFTER the elex than (further) flood the polls if an indictment is announced BEFORE the elex.
        That said, I worry that DOJ’s instinctive temporizing and perfection-seeking will allow some psychic advantage to gradually shift to Trump-the-candidate the longer they dither (or agonize).

      • Eichhörnchen says:

        And what timing, exactly, would keep his followers from flooding the airwaves with the timing as proof that he is a victim, etc.?

      • bmaz says:

        Of course he is going to run again, he always was going to. And that has absolutely nothing to do with what DOJ does over the next 21 months.

            • JohnForde says:

              What percentage of people charge with espionage 793 are allowed to post bail? I’m sure it depends on the subsection but I’d really like to see these stats.

              • bmaz says:

                More than you would think. Anybody that thinks Trump would get detained pending trial, assuming ever charged, is nuts.

                • JohnForde says:

                  BMAZ that I am nuts is a given. But why wouldn’t DOJ oppose bail? Clearly the damage TFG could do while in the wild and possessing national defense secrets is incalculable. This seems a like a powerful reason to oppose pre-trial release. Make the judge decide.

                  • timbozone says:

                    Because DOJ would have to provide a rational explanation, to a Federal judge, as to why Trump was a flight risk to even entertain the notion for no bail. Is he a flight risk? He’s surrounded by USSS personnel pretty much night and day so it would be kind of hard for him to sneak out of the country/go on the lam without that being shutdown pretty danged quick.

                    [Welcome back to emptywheel. Please use the same username each time you comment. You published this one as “timbo” which was likely an oversight; I’ve changed it to your new name. In the future your comments may not go through if the same name isn’t used each time. Thanks. /~Rayne]

                    • timbozone says:

                      I tried deleting it but it seems to have sat in moderation for some reason? Anyways, yeah, it’s a battle to fight off the old autofill settings in various browsers. ugh.

                  • timbozone says:

                    No bail? DOJ would have to provide a rational explanation for holding him without pre-trial release, to a Federal judge. Is Trump a flight risk to even entertain the notion for no bail? He’s surrounded by USSS security detail pretty much 24/7 as it is; it would be kind of hard for Trump to sneak out of the country/go on the lam without that being shutdown pretty danged quick. And it would also be hard for him to do much else harm to the nation and its secrets if he was carefully monitored.

          • Parker Dooley says:

            Eugene Debs ran for president from prison, and I believe James Curley’s last term as Boston Mayor was interrupted by a brief term in prison (he did not resign).

            So DJT could run as a man of firm conviction(s).

    • Doctor My Eyes says:

      Thanks for coming out of your shell to make this forceful statement, Bmaz. I can’t believe the frequency with which the notion of not indicting candidates for office is treated as some inviolable law. My distinct impression is that the idea has more to do with Emily Post than any law. Or as Bill Murray said, “It’s actually more of a guideline.”
      Imagine if all a criminal had to do to escape legal jeopardy is to declare their candidacy. In this case it would be two years before the election. So, Americans are to believe that the DOJ would overlook espionage to avoid affecting an election? That notion is bananas. As usual, the press does democracy no favors by treating this idea as some kind of gospel.

        • hollywood says:

          Isn’t there some sort of dance Trump has been doing in terms of fund raising and his ability to siphon off the funds received versus declaring a candidacy?

    • hollywood says:

      Exactly, let’s indict Trump now. Today. Don’t wait. He is guilty of multiple crimes. Maybe he escapes, but indict him now. Start the trial ASAP. Stop dicking around. There’s more than enough evidence. Just do it. Now.

  5. Ravenclaw says:

    “Someone as notoriously paranoid as T***p.” Interesting tidbit from the research on high-trusters vs. low-trusters (the latter blending into paranoid at the extreme): Paranoid people are not less likely to be taken in; high-trust people are not dupes. Here’s how it works:

    If you’re a high-trust person, you begin by assuming that people will be true to their word, well-intentioned etc., which means you get the benefit of assistance/support from all the good people you encounter. If someone betrays that trust, you no longer trust them. So, true, you get hurt once. That’s generally offset by all the good you gain from the rest.

    If you’re a low-trust person, you begin by assuming that people are nefarious and underhanded, which means you don’t rely on them and lose out on all the help they could give you. You trust only those who work to gain your trust – which of course includes confidence artists. (Why would the average decent person bother? But if I’m a skunk who has something to gain…) So you get taken in by the really bad guys.

    Combine that with a narcissistic vulnerability to flattery and you have quite the sucker at your disposal. Something Russian intelligence may have figured out a long time ago, Saudi princes more recently.

    • was_Alan K says:

      I wondered about this from time to time. Is there a reference to low-trust, high-trust you would recommend? It certainly jibes with what Arendt discussed: the fascist strategy to poison truth. Combine this with how brutality might convert a high-trust population to low-trust.

    • pH unbalanced says:

      Interesting. That fits in with the game theory finding that the most generally successful strategy for the Prisoner’s Dilemma over the long term is Tit-for-tat. Start off cooperating with your partner, and then use whichever strategy (cooperating or betrayal) your partner last used.

  6. L. Eslinger says:

    Of course Trump will run. He is incapable of handing power to anyone else, must be the center of attention, and is driven to punish those who won’t grovel or whom he thinks have been disloyal. His instincts and psychological tics will drive him to run, and the legal issues and strategies are a separate matter.

    Unfortunately, there appears to be a sufficient base of corruption and insanity to support Trump, provided he continues to be a useful agent of chaos. The QAnon and MAGA crowds obtain license and validation, while the Federalist Society types benefit from the distractions and dilution of opposition resources.

  7. bmaz says:

    And Tom Barrack and his partner have been acquitted in their trial. Notable that Barrack did take the stand in his own defense. Remember this the next time anybody here is inclined to say a criminal conviction is a “slam dunk”. It is never a slam dunk.

  8. Hope Ratner says:

    After reading the initial story and the bringing in former SDNY prosecutors, it came to me that the ultimate *chef’s kiss* would be bringing Preet Bharara back in as well.

  9. Arteberry says:

    Speaking of the stolen documents, next Thursday is the deadline for the Trump response brief on the government’s expedited appeal in the 11th Cir. re Cannon’s appointment of the special master. The government is asking the Court of Appeal to completely shut down Trump’s civil action and, in consequence, let the government go about its business of using the non-classified documents (as well as the classified documents) in its investigation. I am extremely curious to see what approach the Trump team takes in its response. Normally, one would expect the appellee, Trump, to challenge the appellant’s basic legal assertions. In a nutshell, the government says that under the Richey standards, Judge Cannon lacked equitable jurisdiction from the get-go. The government also says that the attorney-client privilege issues in the seized documents have been resolved; any executive privilege claims fail as a matter of law, for multiple reasons; presidential records exclusively belong to NARA and whatever documents Trump could conceivably claim as personal were nevertheless appropriately subject to the seizure.

    The problem for Trump is that there is no credible rebuttal on these legal points. In particular, Trump has been aggressively interposing—yelling—the words “executive privilege” at every step of the way but Trump has yet to articulate a theory of how executive privilege applies here. The best Trump could come up with today, one might suppose, is some attempt to extend to this case Kavanaugh’s separate statement in Trump v. Thompson about the post-presidency survivability of EP. Of course, Trump v. Thompson involved a radically different issue, namely, disclosure of information to a separate branch of government. And Kavanaugh is only one of nine justices; the other eight did not see fit to join in his opinion.

    All of which leads me to wonder if the Trump response next week might only superficially challenge the government’s legal assertions and instead focus heavily on the current practicalities. The argument could be that the special master is underway, everything is moving along fine (not!) and the answers to all questions on all documents will soon be forthcoming from the district court. In other words, Trump would say, let it play out and then consider any remaining issues that need to be appealed.

    I have grave difficulty believing the 11th Cir. would bite at that. Instead of disposing of this case once and for all, the Court of Appeal could not possibly be looking forward to the day that it has to decide about EP claims, claims Cannon would undoubtedly uphold (overruling Dearie, of course) on hundreds or even thousands of individual documents. Here, EP is really a question of law, not fact, and in the interest of judicial economy it is better dealt with now rather than later.

    Finally, one hopes that the 11th Cir. deals with the appeal comprehensively. The three judge panel certainly could take the conservative approach and merely say the Trump civil action fails to pass the Richey standard—case dismissed and we don’t need to consider anything else. The panel on the government’s motion for stay, however, went all the way down the line with the government, including express rejection of EP claims on the classified documents. It would be great to see the new merits panel do the same thing with respect to the non-classified documents. That would give the government a leg up after indicting Trump. Trump could still raise EP issues could on witness testimony but would have a much harder time raising EP issues on the documents themselves.

    • bmaz says:

      What is “equitable jurisdiction” in relation to this case?? There is personal jurisdiction and subject matter jurisdiction. “Equitable jurisdiction”, what er that may be, is inapplicable.

      • Arteberry says:

        You would be well-served to read the briefs in the case and the Richey decision. A civil action for return of seized property or constraint on an ongoing investigation is an action in equity and, according to the case law, the district court has no jurisdiction to act except in the presence of certain equitable factors. That, of course, is another way of saying that the court lacks subject matter jurisdiction in the absence of those factors.

        From the government brief Statement of Jurisdiction (p. 4): “The district court purported to exercise jurisdiction pursuant to Federal Rule of Criminal Procedure Rule 41(g) and its equitable jurisdiction.”

        From the government brief Argument (p. 20-21): “The District Court Erred In Exercising Equitable Jurisdiction … A district court’s exercise of civil equitable jurisdiction to constrain an ongoing criminal investigation is limited to ‘exceptional circumstances.” (Citations to Richey and other cases in the brief omitted here.). The government goes on to show the Richey factors are not present and thus the district court lacked the authority to impose the special master or other equitable remedies.

        Seems like you struggled a bit with civil procedure as a 1L.

        • bmaz says:

          I do not need to “read” jack shit. I do this for a living. Do you? And, thanks, I understand civil and criminal procedure just fine. Go stuff it.

          • Arteberry says:

            Indeed, reading the law does not appear to be your strong suit. Which is why concepts like equitable jurisdiction are unknown to you. Maybe I’m alone in this view, but In my forty years of law practice I have observed that it pays to read the law rather than demonstrate your ignorance of it, as you have just done.

            • bmaz says:

              You are full of it. And feel free to screw off. Here is a common definition of “equitable jurisdiction”:

              Equitable jurisdiction is a system of justice designed to supplement the common law by taking action in a reasonable and fair manner which results in just outcome. It is based on a set of legal principles namely equity for achieving natural justice. Under equitable jurisdiction no one is allowed to enforce his/her legal rights if it would be unconscionable for him/her to do so.

              What a load of crap. Have you ever really dealt with trial courts, whether federal or state? Because your statement is laughable. At best. “Natural justice”! What a joke. Courts operate off of real law, not that garbage. And if you want to see ignorance of law, take a gander in your closest mirror.

              • Arteberry says:

                You should break the news to DOJ that the majority of its brief to the 11th Cir. (in one of the most high profile cases of recent years) is fully and expressly premised on something other than “real law.” Also better let DOJ know that the 11th Cir. is going to laugh the appeal out of court when it sees DOJ’s principal argument is based on equitable jurisdiction. You have succeeded, however, in proving that someone in your vicinity has a copy of Black’s law dictionary or the equivalent and could read that passage to you. A definition that is only remotely related to the definition in use in the 11th Cir. You likewise proved, again, that you remain utterly clueless about the details of the Trump v. U.S. appeal and how the concept of equitable jurisdiction has repeatedly been applied by the courts concerning the type of relief Trump has sought. Every time your part of the colloquy turns to fuck off or similar words it proves you can offer no logic or facts pertinent to the case; only wounded ego and, not unlike Trump, self-aggrandizement and risible assertions of expertise.

                • bmaz says:

                  Breaking News: You are completely full of shit. And, yes, you can fuck the hell right off with your garbage “equitable jurisdiction” horse manure. And everything else you said.

                  Seriously, you have demonstrated nothing to support your argument in a real court. Have you ever been in one? I have, both at the trial and appellate level. And I have NEVER heard an argument as to “equitable jurisdiction”. Never. Also, too, I do not need to explain anything to the DOJ.

                  • Arteberry says:

                    We will soon find out from the 11th Cir. whether it recognizes the district court’s lack of equitable jurisdiction (a concept you never heard of until today) as a central issue in the appeal. I’m sure you will be true to you word and won’t read the 11th Cir. ruling when it comes down. But the rest of us will then know for sure if the district court’s equitable jurisdiction is, in fact, a key part of the decision, however the decision goes. And at that point we will all know who was full of shit (that would be you) and who wasn’t (that would include, but not be limited to, me and everyone in the government or on Trump’s team who is actually litigating the appeal). Meantime, keep up the good work with your increasingly Trumpian blathering about your unrivaled legal experience and genius and the pathetic stupidity of lawyers like me who actually consider the appellate record, the briefs, and the case law.

                    • Doug_Fir says:

                      Hi Arteberry. Bmaz is a mod here and isn’t going away. Maybe accept that reality and save us all the hassle of scrolling past your many,lengthy arguments. Once the writing’s on the wall it ain’t coming off.


        • nedu says:

          As it happens, the 9th Circuit fairly recently issued an opinion distinguishing equitable jurisdiction from subject matter jurisdiction.

          Equitable jurisdiction is distinct from subject matter jurisdiction, although both are required for a federal court to hear the merits of an equitable claim. Even when a court has subject matter jurisdiction, “[t]here remains the question of equitable jurisdiction” before “the District Court properly [can] reach the merits.” Schlesinger v. Councilman, 420 U.S. 738, 754 (1975); [see also omitted 9th Circuit citations.]

          So I’m surprised to read you apparently saying that in the 11th Circuit, the absence of equitable factors amounts to a lack of subject matter jurisdiction?

          • njbill says:

            In one of her early decisions, Cannon said she was exercising jurisdiction based on Crim. Rule 41 and general equitable jurisdiction but did not elaborate further. A fair reading of her statement is that she considered those to give her subject matter jurisdiction. A properly prepared federal trial court opinion in a civil case should address the basis for subject matter jurisdiction even though Trump failed to allege one in his “motion.” Federal trial courts are courts of limited jurisdiction. A civil plaintiff always must establish that the court has subject matter jurisdiction which is an issue that is never waived.

            The equitable jurisdiction issue has been front and center in this case from early on. It’s an argument the Government has consistently made. The first argument in their appellate brief is that Cannon improperly exercised equitable jurisdiction. Whether it is viewed as an element of subject matter jurisdiction or a necessary prerequisite to the court’s entertaining the case, I suspect it will be a key issue addressed in the 11th Circuit’s decision. If the court agrees with the Government’s argument, they likely will dismiss the case.

            As a rule-nik from way back, I would like to see a more detailed discussion of the basis for subject matter jurisdiction beyond a mere recitation of “Crim. Rule 41 and general equitable jurisdiction.”

    • Hychka says:

      Missed the final bmaz opine because with that many backs and forths this format yields long strings of garbage. Hopefully the bmaz reply wasn’t also garbage. I’d concede in either direction as his only consistency is lack of civility.

    • timbozone says:

      Seems like the best thing to do here, particularly for those of us on the outside of the whole thing, is to just wait and see what the 11th Circuit does with DOJ’s appeal for summary dismissal of Twitler’s hackneyed civil suit. If they decided to keep this in 11th District, then start analyzing the why of it. Until then, meh. I personally hope that the latest 11th Circuit panel will dismiss the whole law suit, telling Trump’s lawyers to refile it in DC Circuit “Whatever you think best. Or not.”

  10. Willis Warren says:

    This is peak ridiculousness:

    Between the lines: Rep. Jim Jordan (R-Ohio) — who will likely become chairman of the powerful House Judiciary Committee next year should Republicans control the chamber — is the leading member behind the report, which relies heavily on reports from FBI whistleblowers.

    Jordan has made clear he will use the committee to make the next two years of Biden’s presidency as painful as possible for Democrats, with this document serving as a road map for how he’ll navigate one of his key priorities.
    The report’s table of contents — which includes references to Hunter Biden, school boards, pro-life facilities and churches, and Facebook — underscores the highly political nature of the investigation.

    • P J Evans says:

      Apparently most of the “report” is multiple copies of letters the House GOP has sent to DOJ, FBI, and likely others, demanding information on their latest theoretical scandal. There are reports that one 5-page letter appears 90 (!) times.

      • Purple Martin says:

        Phillip Bump (WaPo data analysis & presentation nerdery columnist) has a nice piece on that 1,000 page report today:

        The big-stack-of-paper strategy comes to House Judiciary Republicans
        The Washington Post, by Philip Bump, National columnist, November 4, 2022 at 12:56 p.m. EDT

        The report itself was less than 50 pages. Most of the rest of the document was letters sent by the minority members of the committee to various people. In fact, there were more than 1,000 pages of material that wasn’t the report itself, instead mostly those letters.

        Included were pages with nothing but signatures on the letters: There were more than seven times as many pages that had nothing of substance on them except signatures than there were pages in the report.

        Notice that many of the letters — 725 of the 1,050 total pages — consist of dozens of duplicates of the same two letters…Of those 725 pages, 290 included nothing but signatures.

        One final bit of data. If we pick a name at random — say, Rep. Chip Roy (R-Tex.) — we can tally that his signature appears on 173 pages alongside his colleagues. In other words, there are four times as many pages with Chip Roy’s signature as there are actual pages in the report.

        Bump created a couple of nice graphics illustrating that, but the words are good too.

    • earlofhuntingdon says:

      Ignoring repetitions, a boatload of empty-but-for-signature pages, etc., Gym Jordan’s report is 43 pages long, not the 1050 he claims. It’s as if the guy were auditioning to be a Trump Measurer.

    • Tom-1812 says:

      If Jordan takes on this high-profile role as Congressional Crimebuster (“He hunts the biggest game of all! Public enemies that even the G-men cannot reach!”), won’t it just have the effect of rekindling speculation about his time as assistant coach of the Ohio State University wrestling team?

  11. Willis Warren says:

    RE: Kash Patel

    I don’t buy it. Trump uses these guys that “flip” to get info on the investigation. I hope Garland isn’t dumb enough to fall for that bit.

  12. Silly but True says:

    Kash Patel is a long-hauler team Trump. Even with immunity, you can expect him to try to toss a bomb into the middle.

    As Marcy pointed out in the earlier Kash thread, as long as he sticks to his “May script,” he’s not at risk, and presuming that his script is truthful.

    That is, Kash has been selling the one out: “Trump declassified it all.”

    This allows him to rebut even the most basic assertions: “National security prosecutors asked Patel about his public claims this spring that Trump had declassified a large number of government documents before leaving office in 2021. Patel was also questioned about how and why the departing president took secret and top-secret records to Mar-a-Lago…”

    As this exemplifies, _IF_ Kash holds to the “declassified” company line, then he gets to rebut even that the “departing president took secret and top secret records to Mar-a-Lago” because they were not secret or top secret as alleged but unclassified.

    His best and only out is to hold with straight face that “Trump declassified everything.”

    Whether the Kash/Meadows/Trump or Kash/Trump team is able to hold that narrative together or not will be the extent that they are successful in fouling up DoJ’s works.

      • timbozone says:

        Assuming he won’t pull a “Snowden” of course. Bet the Russian’s would get a kick out of that…

    • Tom-1812 says:

      As Samuel Pepys said when he was falsely accused of being a Catholic during the Popish Plot of 1679: “… for against a liar the best defence in the world is to obtain the most you can of his discourse because, let his memory be never [sic] so good, if he gives himself the liberty of talking much he cannot avoid discovering himself”. From “Samuel Pepys: The Years of Peril” by Arthur Bryant.

  13. MT Reedør says:

    Our security services have a hard time keeping paper documents and objects that contain metal from leaving the job site.

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