Trump's Classified Docs Theft: Mar-A-Lago, FBI Subpoenas, Searches & Seizures - DOJ, Garland, GOP Madness - Spy Hard

[Dr. Ken]

Today would be a good day for a raid on trump tower and other properties, and continuing the investigation using material siezed from THOSE properties.

I agree. They should raid other properties and continue their investigation if they find other materials at other properties.

[Slim Cognito]

I’m assuming the judge has been threatened by Trump‘s minions. Not that I’m giving her the cop out, but what are the chances she purposely blew this hoping an appeals court would take it off her hands?

I mean, it’s just so unbelievably stupid.

[much ado]

Is anything known for sure about how she was assigned this case? It seems very strange to an IANAL.

[Luke]

If you don't have cable and want to see commentary about this...

MSNBC: https://ustvgo.tv/msnbc/
CNN: https://ustvgo.tv/cnn-live-streaming-free/

With the midterms looming it was unlikely the dotard was going to be charged before they happened. Americans have been informed about what he'd done. We're moving forward and need to focus on keeping the House and Senate. So while it's irritating af, we have lots of other things to focus on before the Midterms. The DOJ has already seen the documents.

[p0rtia]

Kurt Eichenwald goes super nova. It gains speed as the thread unrolls.

[jez]

I'm not surprised in the least. Teflon Don is going to get away with it again.

[Kendra]

Mystal: The argument that he has executive privilege is so what the scientists would call stupid… It would be like if Trump called for executive privilege over Air Force One and parked the plane at Mar-a-Lago…

[chancery]

Quinta Jurecic
@qjurecic

Barnburner of an NYT article, quoting seven (!) law profs on Cannon's ruling, none of whom is a fan

‘Deeply Problematic’: Experts Question Judge’s Intervention in Trump Inquiry
A ruling by a judge appointed by former President Donald J. Trump surprised specialists and could slow the documents investigation.

[jez]

A gift link for those that want to read the article.

After Judge Cannon was assigned to Mr. Trump’s special master lawsuit, she made the unusual move of publicly declaring that she was inclined to instate one even before hearing arguments from the Justice Department. But she could have done so in a far more modest fashion.

“Judge Cannon had a reasonable path she could have taken — to appoint a special master to review documents for attorney-client privilege and allow the criminal investigation to continue otherwise,” said Ryan Goodman, a New York University law professor. “Instead, she chose a radical path.”

A specialist in separation of powers, Peter M. Shane, who is a legal scholar in residence at N.Y.U., said there was no basis for Judge Cannon to expand a special master’s authority to screen materials that were also potentially subject to executive privilege. That tool is normally thought of as protecting internal executive branch deliberations from disclosure to outsiders like Congress.

“The opinion seems oblivious to the nature of executive privilege,” he said.

[chancery]

Berkeley law professor Orin Kerr brings out the heavy artillery. A federal judge in a civil case has no power to interfere with a federal criminal prosecution. The subject of the prosecution can assert improper prosecutorial conduct as a defense to the prosecution (e.g., by moving to suppress evidence at trial), and can bring an action for damages in a civil rights suit. But ix-nay on opping-stay the prosecution itself.

Orin Kerr
@OrinKerr

I know it's un-Twitter-like to ask a genuine Q, not try to score points, but a Q. I understand how a court can enjoin further execution of a warrant. But does a federal court have authority to enjoin executive branch "use" of seized materials for "investigative purposes"?

The warrant is a court order, so executing it is a judicial issue (putting aside, at least for now, that this was another court's order). But this seems to be an order to enjoin the investigation *after* the warrant was executed.

Some cases:
"Prospective defendants cannot, by bringing ancillary equitable proceedings, circumvent federal criminal procedure." Deaver v. Seymour, 822 F.2d 66 (DC Cir. 1987) (Silberman, J.) (rejecting civil suit to enjoin govt from indicting plaintiff).

Lots of good citations in this recent district court case, to the effect that federal courts lack the power in a civil action to enjoin the executive branch from prosecuting a
criminal case. The case is McPhee v. United States, 2021 WL 5014815 (SDNY 2021)

Ok, so it seems like a federal court in a civil action lacks the power to enjoin a federal prosecution. To my mind, that raises a lot of questions. Judge Cannon has tried to enjoin "use" of the seized materials "for investigative purposes." First, is indicting Trump "use"?

Second, if a federal court lacks power to stop the executive branch from prosecuting a case, can it have power to stop the executive branch from investigating a case to see if a prosecution is appropriate? (I would think they go together-- both core executive branch functions.)

To my mind, this is one of the weirdest parts of Judge Cannon's order. Appointing a special master is very odd here. But the bigger deal is enjoining "use" of the seized materials that were already searched, for further "investigative purposes" (whatever that means).

In the context of a contraband case, where proving the case is all about using the seized items, that injunction amounts to a judicial takeover of the executive branch's investigation. I don't see how a federal judge has the power to do that.

I take the judge's view to be that she has to control the executive branch's investigation to stop it from potentially violating Trump's rights. But under our system of separated powers, that has to be dealt with ex post, not through an injunction. LA v. Lyons, 461 US 95 (1983).

[Greatgrey]

Can you imagine where we would be if instead of Judge Land hearing one of Orly’s cases it landed in ‘Judge’ Cannon’s courtroom?

[pipistrelle]

Can you imagine where we would be if instead of Judge Land hearing one of Orly’s cases it landed in ‘Judge’ Cannon’s courtroom?

I wonder if Cannon is getting some phone calls and messages from other judges saying, "Yeah, no, just no." Well, I can dream.

[bob]

I read something suggesting the DOJ should move for reconsideration.

Not just in a Klayman-esque way to express disagreement. But to load the motion with facts, to create an appellate record.

[Chilidog]

Can the National Archives sue Trump in the DC circuit asking for the return of its property?

[Dave from down under]

Time to check if Cannon is perverting the course of justice.

[bob]

Can the National Archives sue Trump in the DC circuit asking for the return of its property?

D.D.C., but otherwise I think technically yes.

Yesterday that would have been unnecessary, as the feebs have it.

Today, such a prophylactic suit might be useful.

[Tiredretiredlawyer]

Okay, since no one else has said it, "Judge Loose Cannon."

[roadscholar]

I read somewhere that she said the FBI seized "Trumps' medical records and tax returns."

I don't know, but that sounds like she's parroting Trump/Fox horse-hockey.

Anyone heard that such documents were seized? I mean, besides from Loose Cannon?

[Kendra]

I don't recall hearing about tax documents and medical records either. That storage room with lax security would be kind of a dumb place to keep those kind of records (considering how hard he's tried to keep his tax records sekrit) IMHO.

I’m just waiting for the Trump-appointed Judge to name Devin Nunes as the Special Master now.

Comments are fun.

[Greatgrey]

I read somewhere that she said the FBI seized "Trumps' medical records and tax returns."

I don't know, but that sounds like she's parroting Trump/Fox horse-hockey.

Anyone heard that such documents were seized? I mean, besides from Loose Cannon?

Yeah, that was the first I’d heard of that.

Although I can fully imagine ShitGibbon taking the records of his Ronny Jackson fake exams & COVID hospitalization with him.

But not his taxes, somebody who has fought their release for so long wouldn’t keep them in such an insecure location.

[RTH10260]

Nunes? "How to milk a cow the government"

[RTH10260]

Medical records among government documents? Shireley attesting good conciousness to store classified papers in the desk. Shireley contain a medicament recipe to cure the deficiency of declassification.

[Kendra]

Nunes? "How to milk a cow the government"

[Slim Cognito]

It might be a joke but the twitter machine says trump's team is putting forward Eastman, Ginni Thomas and Giuliani. I have a hard time taking that seriously but it is trump.

That said, who would be a qualified, nonpartisan choice, which, of course, would be on the DOJ's list and what happens Friday when she picks, say, Eastman? Can the choice be appealed? Also, does the nominee already have to have the required clearance or can it be granted later?

I'm seeing serious nominee suggestions featuring Kennedy and Breyer, but I'm guessing those are nonstarters.

[RTH10260]

None of the above hace any security clearance. No government docs for them, just sifting thue the stash of papers designated private by the taint team to see what may be privileged attorney correspondence. IMHO. IANAL.