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.

Crime and Punishment

Given the extreme rhetoric Republican politicians and pundits have been spewing this week, it was predictable that somebody from the former president’s cult would try to kill an FBI agent or some other government official. Fortunately, the criminal is the one who died. Does likely violence mean T____ should be left alone? Michelle Cottle of The New York Times answers that question:

It took many accidents, catastrophes, misjudgments and mistakes for D____ T____ to win the presidency in 2016. Two particularly important errors came from James Comey, then the head of the F.B.I., who was excessively worried about what T____’s supporters would think of the resolution of the investigation into Hillary Clinton’s emails.

First, in July 2016, Comey broke protocol to give a news conference in which he criticized Clinton even while announcing that she’d committed no crime. He reportedly did this because he wanted to protect the reputation of the F.B.I. from inevitable right-wing claims that the investigation had been shut down for political reasons.

Then, on Oct. 28, just days before the election, Comey broke protocol again, telling Congress that the Clinton investigation had been reopened because of emails found on the laptop of the former congressman Anthony Weiner. The Justice Department generally discourages filing charges or taking “overt investigative steps” close to an election if they might influence the result. Comey disregarded this because, once again, he dreaded a right-wing freakout once news of the reopened investigation emerged.

“The prospect of oversight hearings, led by restive Republicans investigating an F.B.I. ‘cover-up,’ made everyone uneasy,” The New Yorker reported. In Comey’s memoir, he admitted fearing that concealing the new stage of the investigation — which ended up yielding nothing — would make Clinton, who he assumed would win, seem “illegitimate.” (He didn’t, of course, feel similarly compelled to make public the investigation into T____’s ties to Russia.)

Comey’s attempts to pre-empt a conservative firestorm blew up in his face. He helped put T____ in the White House, where T____ did generational damage to the rule of law and led us to a place where prominent Republicans are calling for abolishing the F.B.I.

This should be a lesson about the futility of shaping law enforcement decisions around the sensitivities of T____’s base. Yet after the F.B.I. executed a search warrant at T____’s beachfront estate this week, some … have questioned the wisdom of subjecting the former president to the normal operation of the law because of the effect it will have on his most febrile admirers.

Andrew Yang, one of the founders of a new centrist third party, tweeted about the “millions of Americans who will see this as unjust persecution.” Damon Linker, usually one of the more sensible centrist thinkers, wrote, “Rather than healing the country’s civic wounds, the effort to punish T____ will only deepen them.”

The Atlantic’s Tim Alberta described feeling “nauseous” watching coverage of the raid. “What we must acknowledge — even those of us who believe T____ has committed crimes, in some cases brazenly so, and deserves full prosecution under the law — is that bringing him to justice could have some awful consequences,” he wrote…. The former president relishes his ability to stir up a mob; it’s part of what makes him so dangerous.

We already know, however, that the failure to bring T____ to justice — for his company’s alleged financial chicanery and his alleged sexual assault, for obstructing Robert Mueller’s special counsel investigation and turning the presidency into a squalid influence-peddling operation, for trying to steal an election and encouraging an insurrection — has been disastrous.

What has strengthened [him] has not been prosecution but impunity, an impunity that some of those who stormed the Capitol thought, erroneously, applied to them as well. [His] mystique is built on his defiance of rules that bind everyone else. He is reportedly motivated to run for president again in part because the office will protect him from prosecution. If we don’t want the presidency to license crime sprees, we should allow presidents to be indicted, not accept some dubious norm that ex-presidents shouldn’t be.

We do not know the scope of the investigation that led a judge to authorize the search of Mar-a-Lago, though it reportedly involves classified documents that T____ failed to turn over to the government even after being subpoenaed. More could be revealed soon: Attorney General Merrick Garland announced on Thursday that the Justice Department had filed to unseal the search warrant.

It should go without saying that T____ and his followers, who howled “Lock her up!” about Clinton, do not believe that it is wrong for the Justice Department to pursue a probe against a presidential contender over the improper handling of classified material. What they believe is that it is wrong to pursue a case against T____, who bonds with his acolytes through a shared sense of aggrieved victimization.

The question is how much deference the rest of us should give to this belief. No doubt, T____’s most inflamed fans might act out in horrifying ways; many are heavily armed and speak lustily about civil war. To let this dictate the workings of justice is to accept an insurrectionists’ veto. The far right is constantly threatening violence if it doesn’t get its way. Does anyone truly believe that giving in to its blackmail will make it less aggressive?

It was T____ himself who signed a law making the removal and retention of classified documents a felony punishable by up to five years in prison. Those who think that it would be too socially disruptive to apply such a statute to him should specify which laws they believe the former president is and is not obliged to obey. And those in charge of enforcing our laws should remember that the caterwauling of the T____ camp is designed to intimidate them and such intimidation helped him become president in the first place.

T____ shouldn’t be prosecuted because of politics, but he also shouldn’t be spared because of them. The only relevant question is whether he committed a crime, not what crimes his devotees might commit if he’s held to account.

Unquote.

There’s a similar situation in Ukraine. Some people say we shouldn’t provoke Putin for fear he’ll do something worse. But allowing him to do whatever he wants in Ukraine won’t make him less dangerous.

Charge Him Now: Obstruction of Justice

Remember this? It was news in May 2019:

President D___ T___ would have been indicted for obstruction of justice in special counsel Robert Mueller’s investigation if he did not hold the nation’s highest office, nearly 700 former federal prosecutors argued in an open letter published on Medium on Monday.

The ex-prosecutors — who have served under both Republican and Democratic administrations dating back to President Dwight D. Eisenhower — said Attorney General William Barr’s decision not to charge T___ with obstruction “runs counter to logic and our experience.”

The letter added, “Each of us believes that the conduct of President T___ described in Special Counsel Robert Mueller’s report would, in the case of any other person not covered by the Office of Legal Counsel policy against indicting a sitting President, result in multiple felony charges for obstruction of justice.”

“We believe strongly that, but for the OLC memo, the overwhelming weight of professional judgment would come down in favor of prosecution for the conduct outlined in the Mueller Report,” the letter continued.

The Mueller report cited 10 episodes indicating that T____ could be prosecuted after he left office. He left office more than six months ago, but there is no sign so far that the Department of Justice is pursuing the matter.

Before leaving office, the former president also tried to overturn the results of the election. I’m not sure there is anything in federal law that explicitly makes that behavior illegal. The laws against treason and sedition are narrowly written and may not apply to a president doing everything he can to illegally remain in office. Congress probably never imagined that kind of behavior.

Nevertheless, this latest news is remarkable:

Former President D____ T____ . . . explicitly pressured {the acting attorney general] to declare the 2020 election “corrupt” in a December phone call, according to documents published Friday by the House Oversight and Reform Committee. [They are] the most recent evidence of T____’s extraordinary campaign to overturn the election’s results.

The House committee—which is investigating the T____ administration’s potentially unlawful efforts to influence the outcome of the election—made public notes taken by former acting Attorney General Jeffrey Rosen’s deputy, Richard Donoghue, during a Dec. 27 phone call between T____ and top officials from the Department of Justice.

In the notes summarizing the call, Donoghue recalled T____ asking Rosen and other top officials to “just say that the election was corrupt + leave the rest to me” and congressional allies [Forbes].

But, according to The Guardian:

D____ T____ insisted on Saturday that when he told senior justice department officials to “Just say that the election was corrupt [and] leave the rest to me”, he was not attempting to subvert US democracy, but to “uphold the integrity and honesty of elections and the sanctity of our vote”. . . .

One Washington editor, Benjy Sarlin of NBC News, wrote on Twitter: “We can’t take a continuous historic scandal for granted just because he says it out loud all the time. These are Watergate-level allegations.”

On Friday, Carolyn Maloney, chair of the House oversight committee, said: “These handwritten notes show that President T____ directly instructed our nation’s top law enforcement agency to take steps to overturn a free and fair election.”

If that isn’t treason or sedition, strictly speaking, it sure sounds like “interference with the orderly administration of law and justice”, i.e. obstruction.

The Department of Justice has work to do in the matter of former president D___ J. T____.

Or doesn’t the rule of law apply to him?