I Intend To Never Mention This Again

Whitewater. Her emails. Our latest fake scandal can’t possibly generate as much bullshit as those two. Nevertheless, it’s worth being reminded of a few simple facts. Jonathan Chait of New York Magazine does the reminding with “Biden’s Document Blunder Is Nothing Like Trump’s Crime”:

The sweet spot for D____ T____’s allies has always been when they can justify his abuses and crimes through misdirected comparisons rather than direct defense. Did T____ extort Ukraine into smearing his opponent? Well, Ted Kennedy once did something kind of like this. Did T____ try to stay in office after losing the election? Maybe so, but let us tell you about the time a Democrat registered an objection to the Electoral College count in Congress.

The key aspect of these arguments is exaggeration, not fabrication. They seize on real events, often genuinely bad things done by other politicians, then use them as pretext to dismiss actions by Trump of a vastly greater order of magnitude.

As many people have very neutrally pointed out, the news that President Biden held on to classified documents is pure manna for T____’s defenders. It gives them a set of facts to work with that, if examined without any of the important context, can be spun to the willfully credulous as evidence that these men have committed similar crimes.

“There’s no good case for putting a President in prison — much less making two Presidents into cellmates — for improperly retaining materials from recent public office,” intones The Wall Street Journal. “When Mr. T____ was out on a limb by himself, this point was less obvious to some of our media competitors. Now that Mr. Biden faces a similar inquiry, perhaps they see how ridiculous it is.”

But T____ is not potentially facing charges because he improperly took classified documents. It’s because when the government found out about the documents, he refused to give them back and — allegedly — took steps to hide them from the FBI. This is not a small twist on the same crime. It is the crime.

You might say, in T____s defense, that he had no underlying motive to hold on to the documents — that is, they didn’t contain any national-security secrets he planned to sell or incriminating information he wished to hoard. That is probably true. The motive instead seems to be that T____ does not believe the law applies to him.

This is how he has operated for his entire career. He cheats, lies, and steals in the expectation that he can brazen out any consequences. He can simply refuse to let Black people rent an apartment or pay contractors what he promised them or lie to his lenders about his worth, and whatever cost he faces will be worth it. The reason his document theft rose to the level of a federal crime was that he applied this method to behavior that is covered by the federal criminal code and handled by prosecutors he can’t necessarily bully or bribe into submission.

When T____’s allies moan about his supposedly unfair treatment, the distinction is hiding in plain sight of their complaints. “Where’s the raid? Where’s the pictures of the classified documents? Where’s the special counsel?” demands Jim Jordan.

“Why hasn’t the FBI raided Joe Biden’s home?” asks Dan Crenshaw.

The obvious answer is that Biden didn’t refuse to give back the documents. Indeed, his lawyers volunteered that they had the documents and turned them over immediately. There was nothing to raid.

If T____’s lawyers had informed the National Archives that he’d mistakenly taken classified documents, or even if they had responded to requests from the archives by turning them over, the FBI never would have been involved. The documents themselves would never have become a criminal matter if T____ had complied with the law. It became one because he flagrantly refused to follow the law, which happened because T____ is a criminal.

The whole thrust of T____ist propaganda has been to act as though normal politicians making normal blunders are criminals in order to justify handing the presidency to a lifelong crook. T____ is not a smart man but shrewd enough to comprehend that his party is fully invested in a narrative of Democratic evil that compels them to deem anything he’s done, however wrong or illegal, as no different than the actions of any other powerful man. If T____ shot somebody on Fifth Avenue, Republicans would start talking about [anything else].

Meanwhile, the deputy opinion editor of the Washington Post argued today that — although Biden’s situation is clearly different — the Department of Justice shouldn’t prosecute the former president/unindicted co-conspirator/lifelong con man and scofflaw, since the Department’s “credibility rests on being perceived to play fair” and millions of Republicans won’t think it’s fair that only their guy is prosecuted. The Post’s deputy opinion editor isn’t equally concerned about the credibility of a Department of Justice that doesn’t prosecute somebody for serious crimes because his supporters will be angry.

Some Real World Perspective on the Case of the Purloined Papers

As I wait for the black-robed person with the lifetime judicial appointment to share her next pronouncement from on high, author and lawyer Seth Abramson expresses himself on the Florida fiasco. I especially found interesting his description of how a case like this works in the real world:

We have our special master! In a… uh… theft case… not involving attorney-client privilege or executive privilege or anything else special masters deal with… {sigh} This is all so goddamned stupid.

I earnestly admire those lawyers who are spending hours and hours analyzing the legal maneuvers in the Mar-a-Lago case. But I decided I couldn’t do it—because it’s all so stupid and farcical and pretextual and an insult to the rule of law and how {waves hands} all of this works.

I have worked *extremely* complicated criminal cases, from first-degree murders to armed robberies to felonious sexual assaults to financial crimes cases and other types of cases in which documents are at the center of everything. And let me tell you what the Mar-a-Lago case is:

It’s the equivalent of a man being caught with a gun over the dead body of his victim—smoke still rising from the gun, residue all over the hand of the shooter—with a *signed confession in his handwriting* pinned to his chest like he’s a kindergartener on his first day of school.

There is—I can’t emphasize this enough—nothing complicated about this case besides the political consequences and implications of it, which every lawyer in America took an oath not to consider when they became a lawyer (and that includes judges). So the whole thing is sickening.

The lawyers who are currently analyzing this case to death are doing so in good faith and are trying to be good people and lawyers. But they are also normalizing the idea that there are any actual complications to write about here. There are not. They are all invented and false.

There are no attorney-client privilege issues here. There are no executive privilege issues here. The defendant is dead to rights and has no plausible defense. Under normal circumstances plea negotiations would’ve begun immediately, and prison time would be a given to both sides.

I have committed myself to being honest with readers about the law, and also honest about my desire that our justice system be better than it is. How can I pretend to the readers of this feed that the Mar-a-Lago case is interesting when *legally* it is just effing *not*? At all?

And don’t tell me about this being the first case of its kind involving a President of the United States. Had Trump gone to Fifth Avenue as he once promised and gunned down a bunch of innocent civilians, would that make the resultant homicide cases *legally* interesting? Hell no.

Mar-a-Lago case talk is a flim-flam we’re sucked into because we feel like there’s no other choice. We “have” to discuss the minute details of the case for political reasons—and because T____’s the sort of criminal who’s never been held accountable and never takes responsibility.

But the other reason it seems we have to talk about it is that the federal judiciary in Florida apparently corrupt, and will openly treat a very rich and very powerful and very famous white male politician in a way that it wouldn’t treat anyone else. And it’ll do so unabashedly.

So every single reason to cover the intricacies of the Mar-a-Lago case is depressing. And I feel the world is depressing enough already. It should be sufficient for readers to simply know that T____ is dead to rights and would be imprisoned already if he were not D____ T____.

Yes, as a former federal criminal investigator, I can point out all the critical investigative steps the Department of Justice deliberately *didn’t* take—all of them dereliction of duty—for purely political reasons, which makes their repeated protestations that they’re above politics morally toxic but they could easily reply—or their defenders could do so on their behalf—that they’re just reacting to a corrupt judiciary that won’t let the wheels of justice turn unimpeded when the rich, powerful, and famous in politics are involved….

So when I write on the Mar-a-Lago case, I’ll write about a case in which the defendant has no defense and should already be in prison (remember, DOJ/NARA—extraordinarily—gave T____ 18 months to remedy his crime, and he refused *and committed more*) and the legal issues are banal….

It is true that in any case in which documents are seized, some documents not related to the investigation may be accidentally taken. These are returned *as a matter of course* (e.g., T____’s passports). If the defendant thinks some items were not returned, he has his attorney ask government agents for them back. If the government agents refuse, the defendant has his attorney go to the judge and a hearing is held and an order (if appropriate) issued. If the parties *dispute* whether something was properly taken, the judge may personally review the *handful* of documents answering to that description (and indeed it would only be a handful of documents). There would be no special master, no delay of the criminal investigation. None of the abject, embarrassing BS we are seeing in the Mar-a-Lago case.

This judge impeded a federal criminal investigation and will appoint a special master without D____ T____ having even identified any documents he thinks were wrongly taken or making any attempt to negotiate their return (or have the judge herself review them). It is all a sham.

Special masters are for cases that look nothing like this one—for instance when the office of a defendant’s attorney is searched. T____ has yet to even make the argument—because he could never make it—that he had a right to retain classified documents in his home post-presidency.

So yes, I do believe that every legal analysis of this case should begin with a disclaimer explaining that nothing about this case has been handled in the manner it would be handled were the defendant anyone but D____ T____—and that the rule of law has been bent at *every* turn.

It’s Not Enough To Show They’re Wrong

Federal judge Reed O’Connor, a gift to America from George W. Bush, is always a good bet to rule against Democratic policies. Right-wing lawyers seek him out for just this purpose. When this happened today, therefore, it shouldn’t have been a surprise:

A federal judge in Texas on Wednesday ruled that the government cannot require a Christian-owned company to cover HIV preventative medication because it violates their religious rights under federal law.

HIV PrEP — which is more than 90% effective in preventing the transmission of HIV — is recommended for adults who are at high risk of getting HIV, which includes [but is not limited to] men who have sex with other men.

The plaintiffs in the case — six individuals and two Christian-owned businesses, Braidwood Management and Kelley Orthodontics — had argued that they should not be mandated to offer coverage of HIV PrEP because they did not want to encourage “homosexual behavior.”

Earlier this week, of course, Judge Aileen Cannon, a gift from the previous president, broke new legal ground by interfering with a criminal investigation of a private citizen (i.e. the previous president) because being investigated for theft of highly sensitive government documents could hurt this private citizen’s reputation.

It isn’t enough to simply point out how bad — actually, how illegal — decisions like these are. Two writers for Slate have a much better idea:

If the last term at the Supreme Court and indeed Cannon’s baffling new order mean anything, they signify that in this new age of legal Calvinball, one side invents new “rules” and then the other scrambles to try to play by them. For every single legal thinker who read the Mar-a-Lago order to mean, quite correctly, that ex-presidents are above the law, furrowing your brow and pointing out its grievous errors only takes you halfway there. The better question is what, if anything, do you propose to do about it? The furrowing is cathartic, but it’s also not a plan.

If there were a principle that best embodies why progressives are losing ground so quickly—even as they are correct on the facts, and the law, and the zeitgeist—it must be this tendency to just keep on lawyering the other side’s bad law in the hopes that the lawyering itself will make all the bad faith and crooked law go away. But for those who are genuinely worried that democracy will rise or fall based on whether a case lands before [Republican] judges, merely explaining legal flaws in pointillist detail isn’t an answer. And soberly explaining that Cannon was wrong about most stuff but correct about two things is decidedly not an answer, either. You do not, under any circumstances, have to hand it to them.

It is not a stand-alone answer to point out that Cannon was a T____ pick—a member of the extremely not-neutral Federalist Society, seated after T____ lost the election—or that the former president’s lawyers forum-shopped in order to get this case in front of her. It also doesn’t help to note that Cannon herself acknowledged the proper venue to adjudicate the executive privilege claims made in this case (which are on their face absurd) is in fact in a different court in [the District of Columbia] where Cannon has no jurisdiction and where T____ did not make his case. Nor is it an answer to note that federal judges have literally no constitutional authority to stop an ongoing criminal investigation in its tracks, as Cannon purported to do, rendering her decision an imperious assault on the separation of powers. That, too, is an accurate description of the problem. Stating that, too, is not a solution.

Until and unless those of us who are shocked and horrified at lawless rulings by lawless [right-wing] judges are prepared to propose structural solutions, the aggregated effect of criticizing their rulings won’t be to restore the rule of law or even to restore public confidence in the rule of law. The aggregated effect will be just to confirm that we will all be living under the thumb of [these] lifetime-appointed hacks for many decades.

There are solutions out there for the problem of runaway judges. Expanding the courts—even just the lower courts—is the most bulletproof. Congress has periodically added seats to the federal judiciary from its inception to help judges keep up with ever-ballooning caseloads. Today’s litigants (who are not named [D____ T____]) often face years long court delays. The Judicial Conference, a nonpartisan government institution that develops administrative policies, has begged Congress to add seats to the lower courts. Some Republicans have supported the idea in recognition of the crisis facing our understaffed judiciary. Letting Joe Biden balance out far-right courts like the 11th U.S. Circuit Court of Appeals—which will weigh Cannon’s ruling if the government appeals—would go a long way to tame the jurisprudence of T____ism  [and others]. When district court judges know their radical decisions will be overturned on appeal, they may be less likely to swing for the fences in the first place.

There are other worthy ideas too. Term limits for justices and lower court judges. Limits on courts’ jurisdiction to strike down democratically enacted laws. Modest reforms that restrict the Supreme Court’s ability to suppress voting rights before an election. Let’s hear them all. (God knows Biden’s court reform commission studied them extensively, to little end.)

But the chorus from the left, the middle, and the sane right that the lawlessness is lawless only affirms that we cannot ever escape this closed loop of [renegade] judges. Being really mad but doing nothing to change things is a terrible strategy for democracy and for public confidence in the courts. It creates the illusion that if we work really hard to debunk corrupt rulings, we can force [these] judges to see the light, or feel shame, or do something different. Meanwhile, the targets of our meticulous takedowns laugh at the pains we take to prove them wrong. They. Do. Not. Care.

We get it. Lawyers are trained to lawyer. But if you are lawyering within a system you believe to be broken, or immoral, or lawless, and you aren’t standing up with meaningful fixes for that system, you are, fundamentally, acceding to that lawlessness. It is a moral victory to point out the errors, but it’s also a tacit concession that the system is, in fact, legitimate, no matter how low it may go…..

There are too many things wrong with the Cannon order to litigate. And there are too many things wrong with [the right’s] judicial dominion of every part of our lives— for years to come—to litigate. So maybe it’s time to stop litigating them and start fixing them.

It Helps To Find the Right Judge, Plus the Big Picture

If you want to keep government documents you stole, put them in cardboard boxes with stuff you actually own. Then find a judge you nominated to the federal bench to make a ruling in your favor. It’s simple.

Legal experts are commenting on Judge Aileen Cannon’s decision to grant a motion by the former president and full-time criminal to delay the FBI’s investigation of his theft of government property. The technical legal language they’re using includes “crazytown”, “lawless”, “unbelievable”, she should be “impeached”, “a special exception to the law just for FPOTUS”, “she gave him more than he was entitled to”, “she is micromanaging the Executive Branch”, her decision is “biased even in its presentation of the facts”, her “ruling would demolish future white collar criminal investigations”, “this dumbass ruling”, “friggin’ absurd” and “for fucks’ sake”. Presumably, the Department of Justice will appeal her ruling or, even better, arrest her.

David Roberts of the VOLTS podcast sees the bigger picture:

I’m not a legal analyst, but I hope everyone is taking note of a particular maneuver that this judge pulled — a very, very familiar maneuver from reactionaries. It goes like this: first the right wing propaganda networks spread a bunch of lies and lunatic conspiracy theories.

Then other right-wingers implement particular policies in response to the “appearance” of something shady. So this judge says [FPOTUS] deserves extraordinary, unprecedented latitude because of the “extraordinary circumstances” and the “swirling questions about bias.” But her fellow reactionaries were the only ones raising questions of bias! It’s a perfectly sealed feedback loop — the propagandists “raise questions” and then politicians and judges pass/implement laws based on all the questions that have been raised. An ouroboros of bullshit.

ouroboros-symbol

The most familiar version of this bullshit loop is in reference to voting law. Right wing propagandists have spent decades “raising questions” about voter fraud. Of course, the questions have answers. It’s all bullshit. There is no appreciable voting fraud. Nevertheless, red state after red state has passed restrictive voting laws based on these bad faith questions that have been raised. Real voting restrictions in response to fake voting fraud.

Human beings have a strong instinctive heuristic that says, “where there’s smoke, there’s fire.” If enough people are talking about X or “raising questions” about X, then the default presumption is that there *must be something fishy about X”. Right wing media is basically a machine designed to exploit that heuristic. What right-wingers have realized is that they can create smoke around literally anything. Then they can use that self-created smoke as evidence of fire and pass policy to address the fire [that doesn’t exist]. It’s a neat trick.

I don’t even think it’s some grand, conscious scheme. It’s just a natural outgrowth of reactionary psychology — always claiming victimhood; always demanding special treatment. I’m sure this judge sincerely believes the “raised questions” justify special treatment for Trump.

I’m not so sure about that. I think it’s more a case of ends justifying the means. In order to achieve total political, economic and cultural power — which they think they fully deserve — it’s acceptable to tell lies and ignore the law. Lately, however, there’s another motivation. Stay on the cult leader’s good side or risk serious, possibly fatal, retaliation.

He’s Going To Be Indicted

It was clear for four long years that the former president treated the US government as if he owned it. The government was just another part of his cheesy business “empire”. When it came to following rules, he saw no significant difference between being president of the United States and president of a waste management company in Queens.  

So it shouldn’t be a surprise that when the former president [hereafter “FPOTUS] was forced to vacate the premises on January 20, 2017, he took with him whatever he wanted. The latest inventory of items taken by the FBI from Mar-a-Lago shows that he stole an amazing amount of stuff [i.e. stuff that didn’t belong to him] The way the government documents were “stored” in boxes with magazine and newspaper articles and other memorabilia indicates that his staff simply collected what their boss wanted to keep while paying no attention at all to the laws regarding presidential records and national security. Maybe FPOTUS always had a box next to his desk in which he could toss anything that piqued his interest. I hope the FBI eventually interviews the people on his staff who helped him break the law. More from the New York Times:

The F.B.I.’s search of [Mar-a-Lago] last month recovered 48 empty folders marked as containing classified information, a newly disclosed court filing shows, raising the question of whether the government had fully recovered the documents or any remain missing….

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Along with the empty folders with classified markings, the F.B.I. recovered 40 more empty folders that said they contained sensitive documents the user should “return to staff secretary/military aide,” the inventory said. It also said that agents found seven documents marked as “top secret” in [FPOTUS’s] office and 11 more in a storage room.

The list and an accompanying court filing from the Justice Department did not say whether all the contents of the folders had been recovered. But the filing noted that the inquiry into Mr. Trump’s handling of the documents remained “an active criminal investigation”. The inventory also sheds further light on how documents marked as classified were stored haphazardly, mixed with everyday items.

Among the items found in one box: 30 news clippings dated from 2008 to 2019, three articles of clothing or “gift items,” one book, 11 government documents marked as confidential, 21 marked as secret and 255 government documents or photographs with no classification markings.

The list suggests the files [FPOTUS] took to his Florida home were stored in a slapdash manner and appeared to underline concerns that [he] had not followed rules for protecting national security secrets.

The inventory listed seven batches of materials taken by the F.B.I. from [his] personal office at Mar-a-Lago that contained government-owned documents and photographs, some marked with classification levels up to “top secret” and some that were not marked as classified. The list also included batches of government documents that had been in 26 boxes or containers in a storage room at the compound.

In all, the list said, the F.B.I. retrieved 18 documents marked as top secret, 54 marked as secret, 31 marked as confidential, and 11,179 government documents or photographs without classification markings….

In obtaining a search warrant, the bureau described the possibility of three crimes as the basis of its investigation: the unauthorized retention of national security secrets, obstruction and concealing or destroying government documents. None require a document to have been deemed to be classified, despite repeated and unproven claims that he had declassified everything he took from the Oval Office.

At the hearing on Thursday, the Justice Department said that it had performed its own review and set aside more than 500 pages of records that could be protected by attorney-client privilege.

But lawyers for the department fiercely contested Mr. Trump’s request for a review of the materials based on executive privilege, which protects confidential executive branch communications from disclosure.

The lawyers argued that executive privilege could not be used by a former president to keep part of the executive branch, like the department itself, from reviewing government files as part of its official responsibilities.

[The judge, a Republican nominated for the federal bench by FPOTUS himself] was not entirely persuaded by that argument and left open the possibility that she would grant [her political patron] a special master to conduct a wide-ranging review, encompassing both attorney-client and executive privilege [even though even Bill Barr, FPOTUS’s former attorney general and lackey, said that makes no sense since executive privilege no longer applies to a private citizen, whether or not the Electoral College once made him president].

Unquote.

He is going to be indicted and found guilty unless he runs away. It’s unclear whether he’ll ever spend a night in jail, since he didn’t steal a six-pack from a liquor store and the law is often an ass.

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