Drip, drip, drip.

August 23, 2022

          If reporting in the NYTimes is correct, Trump’s criminal exposure for espionage and obstruction of justice is substantial. In a Monday story entitled, “Trump Had More Than 300 Classified Documents at Mar-a-Lago,” the Times disclosed material facts that suggest Trump was intimately involved in the illegal retention of defense secrets. Per the Times,

• The FBI recovered 300 documents marked “classified” from Mar-a-Lago, either through voluntary return or seizure pursuant to a search warrant;

• Video of the storage area containing the materials shows

  (a)  Trump personally reviewed the documents in the storage area;

  (b)  “people moving boxes in and out, and in some cases, appearing to change the containers some documents were held in.”

• The lawyer who falsely swore that all classified documents had been returned is Cristina Bobb, a former One America News commentator and part-time lawyer.

• Some of the documents seized by the FBI were in a closet in Trump’s office.

          There is no innocent explanation for Trump’s retention of defense secrets. The only question is whether Trump understood that he had illegally removed and retained such documents. The facts reported by the Times will make it difficult for Trump to blame others. The facts strongly suggest an intentional effort to conceal documents and mislead the FBI about the facts.

          In two related developments, the magistrate judge who approved the search warrant, Bruce E. Reinhart, issued a written order regarding the government’s obligation to provide suggested redactions. See Order on Motion to Unseal Search Warrant, Case N.. 22-8332-BER. In the order, Judge Reinhart wrote that he had found “probable cause that evidence of multiple federal crimes would be found” at Mar-a-Lago. Judge Reinhart noted,

One of the statutes for which I found probable cause was 18 USC § 1519, which prohibits obstructing an investigation.

          Taken together, Judge Reinhart’s various comments suggest that the documents at Mar-a-Lago support the existence of “multiple federal crimes [including] obstruction of justice.” Combined with the Times’ reporting on Monday, Trump’s conduct is squarely at issue in the grand jury investigation that generated the search warrant.

          Against this ominous backdrop for Trump, his attorneys filed a bizarre—almost comical—motion to appoint a Special Master to review the documents seized by the FBI. In fairness, the filing is better characterized as a press release filed in court. (The filing is here: Motion for Judicial Oversight and Additional Relief, Case No. 9:22-cv-81294.) Whoever drafted the document has little familiarity with the Federal Rules of Criminal Procedure (or court rules in general). The document is signed by Lindsey Halligan, a Florida attorney whose practice focuses on insurance claims at residential and commercial properties. See Vanity Fair, Report: No Respectable Lawyer Willing to Touch Trump With 10-Foot Pole After Mar-a-Lago Raid.

          In many respects, Trump’s motion amounts to an admission that the search warrant was justified. Whoever drafted the filing apparently believes that they can fool a federal judge by talking about irrelevant matters—like boxes of clothing and trophies also contained in the storage room—without ever addressing the issue of defense secrets that are undoubtedly prominently described in the FBI affidavit.

          Nor does Trump’s motion address the elephant in the room: All documents Trump removed from the White House are presumptively documents that belong to the American people under the Presidential Records Act—without regard to whether they are protected by executive privilege. As I said, the document is most charitably described as a press release to give Fox entertainers something to talk about.

          On the issue of the relief requested—appointment of a special master to review the documents—Trump also prejudices his argument. He complains that Judge Reinhart approved an FBI “filter team” to screen documents that might be protected by privilege, but the basis for that complaint is that the judge “approved the filter protocol without input from the defense.” Trump’s motion fails to note that Trump’s defense lawyers sat mutely in Judge Reinhart’s courtroom on multiple occasions without making an appearance, objecting to the DOJ’s filter team, or otherwise seeking any relief. If a putative defendant decides for strategic reasons to remain silent, it is not grounds for later objection that the judge failed to consider “input from the defense.”

          Finally, as some commentators have noted, the late-filed motion by Trump will give the DOJ the opportunity to reiterate the grave nature of the offenses involved and the finding of probable cause by Judge Reinhart that evidence of multiple crimes (including obstruction of justice) existed at Mar-a-Lago.

          As I noted yesterday, the FBI affidavit will remain under seal for months or years—perhaps until after an indictment is issued. But the flurry of motions before judges in the Southern District of Florida should provide reassurance to all Americans—especially Trump defenders—that the justice system is working as intended. For all of the power of the DOJ, its lawyers must obtain permission from a magistrate judge to obtain a warrant and then abide by his demand for further justification to maintain the confidentiality of the underlying affidavit. Check and balances. The third branch of the government—the judiciary—restrains the second branch of government—the executive.

          Larry Tribe and fellow authors Dennis Aftergut and Jeffrey Abramson addressed the issue of checks and balances in their op-ed entitled, Fox News, Checks and balances on search of Trump’s Mar-a-Lago home and resort display limited government at its best. First, kudos to Tribe et al. for accepting the invitation to speak directly to Fox News readers. (Per Professor Tribe, the reaction has been mixed, but the piece has moved some people’s opinions “a bit.”)

          Despite Trump’s outrageous claims of FBI and DOJ overreach, the skirmishing in federal court proves otherwise. Indeed, some Fox news commentators have been urging Trump to make greater use of the courts to challenge the FBI’s actions. See Talking Points Memo, Fox’s Laura Ingraham Tears Her Hair Out Over Trump Lawyers’ Struggles. As Tribe et al. note, “If one believes in limited government, then the legal process around the Mar-a-Lago search reflects a justice system working properly.”

          And here is the clincher—to the extent that every American believes in checks and balances—the very definition of limited government—we are all “conservatives” in the original sense of the word:

In an eloquent 1956 essay entitled, “On Being a Conservative,” Michael Oakeshott, a scholar revered on the right, wrote: “To be conservative, then, is to prefer the familiar to the unknown, ... the tried to the untried, fact to mystery …  [and] the limited to the unbounded.”

In this sense, all of us who opt for legal process over threats of war and violence are conservatives. The system of checks and balances at work in the Mar-a-Lago search is familiar, tried, fact-based, and limited by oversight. On this foundation lies whatever hope there is that reasonable people on both sides of the political divide may find common ground and avoid the chaos that threatens everyone’s liberty.

          However frustrating we may find the legal battles in the Southern District of Florida, they represent the rule of law in action. We should encourage Trump’s engagement in that process—however amateurish. The act of acknowledging the limitations of the executive branch is a lesson that may come in handy if a Republican is elected to the presidency in 2024. In contesting the search warrant, Trump is entitled to due process, no more and no less.

Liz Cheney.

          Based on reader emails, Liz Cheney is wildly popular among a certain segment of Democrats. Many hope she will challenge Trump for the GOP nomination (one reader suggested a pairing with VP candidate Mitt Romney). Liz Cheney deserves effusive praise for her defense of democracy, but her domestic and foreign policy views border on reactionary—so let’s not get carried away. That said, it is hard not to cheer on Cheney as she calls Senators Cruz and Hawley “unfit for future office.” And what’s not to like about daring Kevin McCarthy and Jim Jordan to subpoena her about the January 6th Committee? As Cheney warned Kevin and Jim,

I will welcome the opportunity to come and explain to them exactly what we found and the threat that Donald Trump poses to the country. They ought to do the same. They are all completely shirking their obligations and their responsibility to come and testify about what they know.

          Ouch! If McCarthy and Jordan know what’s good for them, they won’t give Cheney the microphone for a minute.

The US urges Americans to leave Ukraine.

          After the car-bombing murder of the daughter of a prominent Russian ultranationalist, Russia moved swiftly to pin the blame on Ukraine. The Russian “evidence” includes crudely photoshopped identity documents for a Ukrainian woman who (allegedly) managed to flee to Estonia in a Mini-Cooper with her 12-year-old daughter. NBC News, Russia blames Ukraine for killing Putin ally Dugin’s daughter and The Guardian, Russian security service accuses Ukraine of Darya Dugina’s murder.

          In an ominous development, the US State Department has urged US citizens to leave Ukraine—or avoid government buildings. See CNBC, State Department advises US citizens to leave Ukraine now, says Russia is ‘stepping up efforts’ against civilians. Per the State Department, “The war in Ukraine is volatile and could “deteriorate without warning.”

A note on usage and language.

          I am honored that many scholars, journalists, editors, educators, and amateur grammarians read the newsletter. A few times a week, I receive notes from some of you informing me that I have violated an iron-clad rule of usage, grammar, style, or syntax. I appreciate the feedback but have a simple request: If you write to let me know that I have transgressed an immutable rule of the English language, please include a usage note linking to an authoritative source. (Sources such as “WikiDifference,” “Reddit,” “My sixth-grade teacher,” and “That’s the way we did it at the Wall Street Journal” don’t qualify.) For what it’s worth, I use the Chicago Manual of Style when authorities are divided on current usage.

          For example, I used the word “entitled” twice in today’s newsletter to refer to an article. If you have already sent an email telling me that it is incorrect to use “entitle” to refer to an article, see the Merriam-Webster usage note, which explains that “entitled” has long been used to refer to the name of a book, article, or work of art. The use of “titled” in the same way is a recent addition that is gaining traction but is by no means “the” correct usage. See also this Google Ngram Viewer comparing the evolution in the use of “titled” vs “entitled.”

          And, just for kicks, see this Google Ngram Viewer comparing “bury the lede” vs “bury the lead.” Spoiler alert: “Bury the lede” was considered “newsroom jargon” until 2005, when it was finally added to the Merriam-Webster Dictionary.

          Language is a wonderful and rich aspect of life. Are there rules? Yes, although they are (often) honored more in the breach than the observance! Does style matter? For sure! Is clarity important? Indubitably! Is language frozen in time? Me thinks not!

          Thanks for listening! I promise not to raise this topic for at least another year!

Join Focus for Democracy this Wednesday.

          Focus For Democracy will host a webinar on Wednesday featuring its top recommendation for gaining the most votes to win key races in November. The presentation will highlight Working America. Here is a note from the organizers:

Hi All, 

With election season officially upon us, you are likely flooded with political fundraising requests and may be unsure of how to prioritize your giving. We hope to make your decision-making easier and enable you to make a larger impact by sharing our research on the most effective, cost-efficient places to invest your election dollars.

At this event, you will learn how, with our support, Working America can produce thousands of democratic votes in key battleground states. Working America’s Executive Director Matt Morrison will be joining us.

Join us this Wednesday, August 24th at 5pm PT/8pm ET to learn about our top recommendation, Working America, and its budget shortfall - a gap that, if filled, could make the difference between a win or a loss in November! To register, click here or below and a Zoom link will be emailed to you.

Concluding Thoughts.

          The Kansas ballot measure to amend the state’s constitution to remove protections for reproductive choice was defeated by a margin of 165,000 votes—or 18 percentage points. Despite that decisive victory for reproductive choice—or perhaps because of it—anti-abortion groups in Kansas raised money for hand recounts of ballots in the largest nine counties in Kansas. That recount increased the margin of victory in favor of reproductive choice by 63 votes.

          The outcome of the recount is good news for those fighting the fever dream of “rigged elections,” which is the rallying cry of the GOP. It is another evidence-based defeat for the conspiracy theorists who seek to raise money from gullible Republican voters. Like Trump’s effort to seek relief in federal court, Democrats should not fear legitimate recounts. Indeed, we should welcome them—because they reinforce the legitimacy of the results of free and fair elections. When that happens, we are all winners.

Talk to you tomorrow!