From bad to worse (for Trump).

August 24, 2022

          For the second time in two days, Trump prejudiced his defense to charges of espionage and obstruction of justice. On Tuesday, a Trump-affiliated journalist released a damning letter from the National Archives to Trump, dated May 10, 2022. The full text of the letter is reprinted here: National Archives letter to Trump on classified documents | Just The News.

          The release of the letter was Trump’s attempt to bolster his assertion that the search was politically motivated. Instead, the letter demonstrates that Trump willfully retained highly sensitive defense secrets despite repeated demands for their return. Moreover, the letter shows Trump was afforded unusual deference and delay before the National Archives notified the FBI that Trump had illegally removed and retained defense secrets.

          The important revelations in the letter include the following:

• Trump took documents marked Top Secret and Sensitive Compartmented Information and Special Access Program—the most sensitive defense secrets of the US government;

• Trump attempted to delay FBI review of the documents by claiming the documents were presumptively protected by executive privilege;

• Biden authorized the National Archives to determine whether the assertion of executive privilege was appropriate;

• The records “contain[ed] information that is needed for the conduct of current business of the incumbent President’s office and that is not otherwise available.”

• The National Archives notified Trump of the “urgent need” to conduct a damage assessment relating to the removal of the documents, but Trump’s attorneys did not respond for at least four weeks; and

• Trump’s attorneys are permitted to review the documents returned to the National Archives upon receiving an appropriate security clearance.

          There is more, and I recommend reading the letter in full (linked above). Sometime after the above letter was sent, the DOJ’s head of counterintelligence, Jay Bratt, retrieved additional classified material from Mar-a-Lago on a voluntary basis. A Trump lawyer then signed a sworn statement saying that all classified documents had been returned—a statement that turned out to be false. Trump’s response (or lack thereof) to the National Archives letter prompted the FBI to apply for a search warrant—which uncovered additional Sensitive Compartmented Information and Special Access Program documents at Mar-a-Lago.

          The letter from the National Archives is undoubtedly included in the FBI affidavit supporting the application for a search warrant. As such, it provides strong evidence that the National Archives pursued less intrusive alternatives to a search warrant but encountered resistance and delay from Trump—despite the “urgent” need to recover highly sensitive defense secrets of the US government.

          Trump’s legal team made a tremendous error in releasing the letter—an error that comes hard on the heels of the disastrous court filing on Monday. As to the latter, read the next article.

          But the procedural missteps are beside the point. The letter and the court filing operate as admissions or otherwise prove Trump removed defense secrets and willfully retained them despite demands by the National Archives that they be returned immediately. As such, Trump violated the criminal prohibition of 18 USC 793(d) (Making it a felony to “willfully retain[] the same and fail[] to deliver it on demand to the officer or employee of the United States entitled to receive it”).

          Trump’s criminal liability seems clear. On the question of whether the DOJ should indict Trump under the Espionage Act, read “Concluding Thoughts,” below.

Federal Judge slams Trump’s filing seeking appointment of Special Master.

          On Monday, Trump filed a “motion” seeking the appointment of a special master to review the documents seized by the FBI at Mar-a-Lago. As noted by many commentators, the motion was an embarrassment that betrayed a shocking ignorance of federal procedure. The search warrant was authorized by Magistrate Judge Bruce Reinhart. Rather than asking Judge Reinhart to appoint a special master, Trump filed his motion before a different judge—Judge Aileen M. Cannon.

          On Tuesday, Judge Cannon (and her clerk) issued a series of orders that effectively reprimanded Trump and his attorneys for failing to address basic issues (including jurisdiction and the nature of the relief sought) and for failing to comply with procedural rules.

          Judge Cannon’s docket is here: Trump v. United States, 9:22-cv-81294 – CourtListener.com. The docket includes the “paperless order” that requires Trump to provide answers to several questions, including:

•  Why the motion for the special master was not filed before Judge Reinhart;

•  How the existence of the proceeding before Judge Reinhart affects the “jurisdiction” of Judge Cannon to consider the relief sought by Trump;

•  The precise relief sought, including any request for injunctive relief pending resolution of Trump’s motion.

          The appropriate course of action for Judge Cannon is to recognize that Judge Reinhart already has jurisdiction over the case. If Trump disagrees with Reinhart’s rulings, he can seek review before Judge Cannon. (For the lawyers reading the newsletter, it appears that Reinhart serves as the magistrate for Judge Cannon, as indicated in her paperless order.)

          It is possible, though unlikely, that Judge Cannon will appoint a special master. Even so, given the nature of the materials at issue, no special master would order the return of the materials to Trump. The documents belong to the American public and must be stored at the National Archives (or in a sensitive compartmented information facility).

          Trump may be able to delay the proceedings a bit, but he is in a very precarious situation. He is cornered and flailing, as illustrated by his disastrous legal moves this week. If he had better options, he would have pursued them. He does not.

Election results.

          Three states held primaries on Tuesday. Although there is much to digest, Democrats should take hope from the victory of Pat Ryan in the Special General Election for New York Congressional District 19. (See Ballotpedia.) The vacant seat comes with a stub term—through the end of this year. Although the seat was vacated by Rep. Antonio Delgado (D), who became Lt. Governor, the “conventional wisdom” predicted that the moderate Republican candidate, Marc Molinaro, would easily win the stub term. But Pat Ryan prevailed with 52.8% of the vote.

          There are several notable points about Ryan’s victory. First, internal Republican polling showed Ryan trailing by ten percentage points. Either the GOP polling was deeply flawed, or Republicans underestimated turnout and enthusiasm among Democrats. Second, Ryan campaigned heavily on reproductive freedom and gun control, while Molinaro highlighted Ryan’s attendance at a Black Lives Matter march in 2020. See City & State New York, New poll shows statistical tie between Pat Ryan and Marc Molinaro in NY-19 special election. Finally, while various GOP PACS supported Molinaro, Ryan garnered financial support from VoteVets.

          We can’t indulge in “just-so” stories to make ourselves feel good. But the bottom line is that Republicans thought they had a lock on NY-19. Instead, they lost on the issues to be replayed across the nation in November. That isn’t a “just-so” story—it is what happened, and it could have been otherwise. And if Ryan had lost, you can be sure the media would have highlighted the loss as a sign that Democrats are doomed. We have every reason to be hopeful but no reason to be complacent!

Help register high-school students to vote!

          I received this note from Laura Brill of the Civics Center about a wonderful opportunity for readers to become engaged in registering high-school students eligible to vote. Here is Laura’s note:

Hi Robert, 

With the school season starting, voter registration rates for the youngest voters remain shockingly low. According to our research, in many parts of the country, fewer than 25% of 18-year-olds are registered to vote. Another report shows that youth voter registration rates this summer were lower in many states than in 2018. 

I know your readers are looking for effective ways to promote democracy, and referring high school students to our programs so they can run voter registration drives in their schools is one of the best ways there is.  This can lead to hundreds of registrations in a single school. Roughly one million high school students will be old enough to vote in November. I’ve provided brief descriptions below in the hopes that you might let your readers know about these efforts.

High School Voter Registration Week (HSVRW, Sept. 19-23) is a national week of action for students around the country to register their classmates to vote. Students can take part in HSVRW by joining Future Voters Action Week or one of our one-hour workshops. Educators interested in registering their students are also welcome to attend!

Future Voters Action Week (FVAW) is a five-day virtual workshop that empowers high school students to spearhead their own advanced voter registration drives in their schools. The program enables students to finish the week with the team, strategy and resources they need to register their peers. Applications for Future Voters Action Week are here. Sessions start Aug. 29 and Sept. 12. We encourage students to apply now, as space is limited.

Best phone bank ever:  We’re training volunteers to phone schools to raise awareness about High School Voter Registration Week, to encourage schools to participate and to find relevant contacts. Trainings are Wednesdays at 4:30pm PT / 7:30pm ET.

Concluding Thoughts.

          A reader sent a link to an op-ed by Jamelle Bouie in NYTimes, The Idea That Letting Trump Walk Will Heal America Is Ridiculous. Bouie argues that defeating Trump at the ballot box will not be enough—because a sizable portion of his followers have already aligned themselves against the basic principles of democracy. And Bouie rejects the notion that inaction—not prosecuting Trump—will preserve the status quo and maintain the peace. He writes,

Inaction is as much a political choice as action is, and far from preserving the status quo—or securing some level of social peace—it sets in stone a new world of total impunity for any sufficiently popular politician or member of the political elite.

          Finally, Bouie argues that it is “foolish to the point of delusion” to assume that if Democrats don’t pursue Trump, “they will return the favor.”

          Declining to prosecute Trump will not heal the nation—and neither will prosecuting him. The divisions afflicting our country run deeper than Trump, though he manifests those divisions. Failing to prosecute Trump will weaken the rule of law, while prosecuting Trump will strengthen it. In a divided nation, fidelity to the rule of law matters more than anything else.

Each day, it becomes clearer that Trump has committed criminal offenses that should result in a conviction before a jury of his peers. A prosecution will roil America, but the absence of a prosecution will weaken it. As between those hard choices, we should take the path that will ultimately strengthen democracy and the rule of law.

          Talk to you tomorrow