Thread by @AkivaMCohen

OK, #LitigationDisasterTourists, let's review the DOJ's Mar-a-Lago filing. A terrific brief - well written and persuasive - it does exactly what you want to do when you're defending a motion: offer the judge multiple independent reasons to say "no"

storage.courtlistener.com/recap/gov.usco…

That said, I don't love the start of this brief. As the old commercial said, you never get a second chance to make a first impression, and the intro to your brief is where you do that. I always want to start with something high-impact that catches attention/sets a tone or theme

This is not that.

It's basically a procedural summary, and while that's valuable, I don't know why they're leading with it. The court already knows all this (it was days ago in a high profile case) and it adds almost nothing

Almost, b/c that "two weeks later" does echo a point the DOJ later hits

brb

This is a fair question. Off the top of my head:

A full two weeks after the government executed a duly-issued warrant to seize wrongfully retained governmental records - including Top Secret and even more highly restricted national security information...

... that former President Trump ("Trump") had wrongfully retained in defiance of a subpoena, and in fact had his agent falsely certify he no longer had possession of - Trump brings this motion seeking appointment of a Special Master to oversee the government's review of the ...

... seized materials. As shown below, that request should be denied for multiple reasons [insert road map to brief"

[Again, that's how I'd have started out, or something along those lines. Doesn't make it the "right" way, but it's mine]

Back to the actual brief - this is a good conclusion to the intro: "Look, judge, this guy is trying to throw mud around the courtroom like a demented monkey, but you can just focus on what's relevant. And he's a stone loser on that"

Also helps set the tone: They're going to be running around with their hair on fire. We're the ones who are just going to give you the straight, basic information and legal argument you need to make your decision

Next we have the summary of argument, which provides the roadmap to the brief:

No standing to ask for the return of documents Trump has no right to possess; the court doesn't have jurisdiction anyway; Trump's case is a stone loser; granting the motion would harm the government

Oh, and also, when we said that Trump standing around for two weeks with his hands in his pockets (on his phone, frantically "Truthing") dooms his case, it's not just because of delay.

We've already reviewed everything he wants to stop us from reviewing

I don't love how they structured this - I'd have put jurisdiction before standing ("can the court hear this at all" should come before "does this plaintiff have a right to ask for this relief") and they're jumping from merits to equities back to merits - but considering how fast

they had to get all of this done, that's not a major issue at all.

This is the kindest possible way to say "oooh, Donny, you done it now"

Seriously, just about everything Trump has done since this saga began was an unforced error. From refusing to return the records, to falsely certifying and forcing the warrant, to publicizing it, he's continually chosen the course of action guaranteed to make things worse for him

There were multiple inflection points where if he had just backed off, this probably goes away quietly. Including, obviously, NARA's initial request for documents, but also through early this year. Instead, he dug in his heels, and now we have ... this <waves at the rubble>

Filing this suit was another one of those mistakes; highly unlikely to get him the results he wants, and granting the DOJ both permission and opportunity to publicly correct his lies about the background while maintaining its policy of "only speaking through its filings"

One last point - the "it would have gone away quietly" isn't "you made us work now we'll make you pay". If he'd returned the docs right away, the government wouldn't have had retention or obstruction claims to make, and it would have had a hell of a time proving his state of mind

And if he'd just kept this whole thing quiet, the government would have had to assess the potential harms to publicizing the risks to national security against the need to enforce the law - all against a backdrop where if they just let it go, nobody would have known.

Now, the national security risks are already public and "just letting it go" would be an announcement that Trump is above the law. Through his own actions, he's basically systematically destroyed any reason a prudent Executive might have decided not to charge.

Next we have the background fact sections, and I'll just pull out some new or important info.

First, Trump spent a year haggling with the Archives about returning presidential records, and ultimately turns over 15 boxes that include some classified information.

Two important points here. First, during the initial year that the administration and TFG spent talking about whether he'd give back the documents, there was no reason for anyone to suspect this was anything other than a relatively minor dispute over anodyne Presidential Records

Schedules, notes, etc. Historically important, but not dangerous for Trump to have in Mar-a-Lago. It wasn't until the documents got turned back over in January 2022 - and reviewed after that - that anyone had ANY reason to think what Trump took contained classified info

And that, of course, is because it would be beyond insane for anyone to take highly classified documents to an active country club/resort where completely uncleared third parties - including foreign nationals - routinely stayed

And yes, yes, it's Trump. They should have known "beyond insane" wasn't a limitation on him.

But that's the trouble with dealing with someone so profoundly untethered to any normal bounds of behavior; the universe of what *they* can think to do is too wide to accurately predict

Second, this "well we declassified everything!" idea? Never came up back then. (This is DOJ saying "they're lying. They're obviously lying")

So NARA gets the boxes, reviews the boxes, and in early February goes "holy shit, there's classified info in here, and it CLEARLY wasn't stored correctly". So it tells DOJ.

At this point, nobody thinks there's anything else at Mar-a-Lago; it's "until mid-January 2022"

Anyway, the FBI then seeks access to the materials - I don't know enough about the PRA steps to explain why it took until April 12 for that request to be final - and the Archives communicate that request to Trump to see if he objects (under the PRA he can, and can be overruled)

Trump's response is to delay - he wants an extension of time before the docs get turned over, and he gets that extension, to 4/29. But he still does nothing, and when DOJ tells him "hey, we need those docs", he asks for another extension - and also says ...

"and if you're not going to grant me that extension, let's just say all of it is covered by Executive privilege"

There are, shall we say, a few problems with this

For one thing, executive privilege belongs to the executive. It can't be asserted against the executive - especially to stop it from performing core executive branch functions like "protecting national security" and "enforcing the laws"

And 2, it needs to be asserted doc by doc

So NARA (after Biden delegates the decision to them) says "hahaha no"

And tells Trump it's turning the docs over to the FBI in 2 days.

And Trump. Does. Nothing.

In other words, the Archives gave Trump time to run to court to challenge its decision. He chose not to. That's a waiver. (Not that it matters; he can't assert executive privilege against the executive branch)

What happens next? The FBI reviews the docs and finds 184 with classification markings. And then the unthinkable happens: they get evidence that there were STILL classified docs at Mar-a-Lago.

How did they get that evidence? We don't know, because they can't reveal it without compromising the investigation.

Now I bet MAGA-land will key in on this and claim the FBI just made it up, there was no evidence, they just wanted to persecute Trump.

Cool story bro. How do we know they didn't? Because there's no question that the evidence they developed was ACCURATE. There were more docs.

So either the FBI is clairvoyant, or yeah, someone gave them the goods on what Trump was holding back.

Anywho, DOJ gets a subpoena and says "no, we're fucking serious this time, give us ALL the documents with classification markings"

And eventually, Trump's counsel goes "fine, here they are, come get them"

Important to note here: The subpoena didn't say "all classified documents"

It said "all documents with classification markings"

So if Trump held back docs with those markings because they were "declassified" he violated the subpoena. No wiggle room here.

Apologies for that cursed gif. Sometimes you just have to do it.

Some important stuff in the pickup description.

First, AGAIN, nobody suggests any of this was "declassified" - instead, they treat it as classified, handing it over in a secured package

Second ... whoooo boy is there a lot going on here

First, focus on the certification. The "custodian of records" is REPORTING that a diligent search was made - meaning that they were told about it and didn't participate - and confirming that no notes or copies of anything was kept.

What does all of this point to?

Again, they're very very clearly treating the records as still classified. There's no other reason to have done a search without involving the custodian, and DEFINITELY no other reason to say "we've kept no copies or notes".

This leaves only 2 options, both awful for Trump

Either:

1) They treated the documents as classified because they believed they WERE classified, because the "magic declassification" story is a recently invented lie; or

2) They treated the documents as classified DESPITE thinking they were unclassified (by "magic declassification") in order to fool the government into thinking Trump had not declassified them

The certification also EXPRESSLY swore that there were NO other documents with classification markings on them at Mar-a-Lago (we know that's false), and they didn't allow the FBI to check whether it was true by looking in the remaining boxes.

This ... was not a wise move. "We promise we found everything, but no you cannot check" is not a good way to allay suspicion here.

I'm no criminal lawyer, so maybe I'm missing something, but I'd have allowed the FBI to review for classified info subject to an agreement that

they could not make any notes on anything not marked classified, could not read anything not marked classified, and could not use any knowledge gained in that review for any purpose.

You get to double check our search, that's it.

Instead, they basically told the FBI "yeah, we SAY there's nothing else, but we're not so sure"

And what did they turn over? 38 additional documents. When you realize the FBI says they found 700+ more when they executed the warrant, that should tell you something about the "diligent search" Trump claimed he did to find the 38

And now we get to the juicy stuff.

DOJ keeps digging (guaranteed by the "no you can't check the boxes") and it finds ... a lot.

Like ... a lot a lot.

Turns out Trump didn't search everywhere, actively removed documents from the room before letting his counsel search for classified docs, and didn't return documents to the only room he was allowed to search.

And at that point, DOJ is

"You're wondering why we had to get a warrant? That's why we had to get a warrant. 'You could have just asked, we cooperated?' No, assholes. We DID ask. You DIDN'T cooperate. You twice lied & told us you returned everything, & you tried to hide docs. OF COURSE we got a warrant."

Next, the government obliterates the "you took stuff you weren't allowed to take" claim

And holy hell, he had classified documents just lying around in his desk drawers?

In MULTIPLE desks, no less - which probably means that some classified info was in the desk of some unidentified third party (they're not all his desk)

Unless whoever that person is has a security clearance, Trump is in some deep deep shit; that's dissemination of national defense information to an uncleared person.

Anyway, they're done with review and identified over 100 unique documents, some with the highest classification designations possible (where did I get 700 from?).

Hell, the folks doing the review needed additional clearances just to read some of these docs

Last, the privilege review team has completed its work, too - and is just waiting on this judge to tell them they can follow the warrant protocols.

That's the fact section. Gotta take a break now, will come back to review the legal argument

OK, let's talk about the argument section, since Trump is about to file his reply brief.

First problem: If Trump had no right to HAVE the documents in the first place, he has no right to ask for them back. And he had no right to have Presidential Records

It's a good argument, but there's a problem with it - they've conceded that at least some of the documents they took (like the passports, and the framed TIME cover in the photo, etc) weren't Presidential records, and Trump does have a possessory interest in those docs

So while it's absolutely correct for the documents the government - and Trump - most care about (the classified materials he's going to get indicted for) it's not the case-winner they think it is.

He's got standing to make *a* 41(g) motion, even if of limited scope

They try to dance around that by focusing on the Presidential records. But the Court is likely going to reject the standing argument since there's no real dispute that he could make at least some 41(g) motion

Next they get to the merits, and say "look, even as to personal items, he can't get those back. There's evidentiary value to them". Plus, you only get things back if there's a 4th Am. violation, and taking docs stored together isn't one.

Also, the law was changed to allow the government to keep anything that it took in good faith, and also also, you've got to show extreme disregard for the 4th Amendment and that you absolutely MUST have the property RIGHT THE HELL NOW, none of which Trump did.

BTW, what do they mean by "evidentiary value"?

Take the passports. If you have your passports stored in a drawer with classified docs, it's going to be very hard to argue "that drawer isn't mine"; that the personal effects were stored there helps connect you to the documents

Next they argue that Trump has no basis to stop them from reviewing the seized materials

They argue that there's no injury to Trump from review of Presidential records, because they're not his, and cite a very important SCOTUS case on this (Nixon v. General Services Administration). But ... I don't love this for them.

At least not for that argument, anyway. The case calls it a "very limited intrusion" into the former President's confidentiality interests, which means it recognizes that there is SOME harm to the former President, even if the records aren't his and even if it's not a lot of harm

Of course, "some minor harm" isn't enough to get a preliminary injunction - you need major, irreparable harm - but they don't make that point. Instead, they move onto another, also valid point: They've done their review, so the harm has already happened

Last, they point to Trump's insane delay in seeking injunctive relief.

Look, if you're going to ask for an injunction then, absent some compelling reason not to, you need to do it QUICKLY. Trump waited until the review was done - a sure sign there's no real massive harm

The reference to the Michael Cohen case is a terrific example of Trump in particular moving quickly to seek a special master. And they really twist the knife on why that delay is meaningful

Next they point out that the harm to the government from preventing it from figuring out what classified information was exposed and how to rectify it would be enormous.

I don't know how well this lands after they say "we've already reviewed" - if so, what's the harm?

The fact that they are this far into the argument and haven't mentioned that Trump is trying to assert executive privilege against the executive branch and to impede core executive branch functions, btw, is absolutely nuts

We're on to "a special master is unnecessary and inappropriate" and while this is fun for civ-pro geeks, I'll sum up the attorney client privilege argument: you don't get a SM when it's just one non-lawyer's files that are seized. There's no need for it

The astute among you will note that section starts with C.

I skipped A & B because that's where they FINALLY make the "there's no executive privilege claim here" argument, and I can't believe they shoved it into this section.

Look, my quick first reaction to this brief was it's persuasive and good ... and it mostly is. But organizationally, I hate it. There should have been a merits section focusing on the various claims (privilege, standing, etc.) and then the irreparable harm section, etc.

Instead, we've got the merits sort of haphazardly strewn into various places in the brief, and that just doesn't help. At all.

OK, that said, back to the merits of the Executive Privilege argument, and on this one, they fucking nuke him.

Look, there's a SCOTUS case directly on point and it doesn't go Trump's way. And it's insane to think the law EVER could go Trump's way on this issue.

Executive privilege BELONGS TO the executive branch. It exists FOR THE BENEFIT OF the executive branch. So you can't invoke it AGAINST the executive branch.

Also, he can't invoke executive privilege under the PRA (which has a process for the former president to raise such concerns about dissemination outside the executive branch) because he didn't turn over the records under the PRA, and also the PRA doesn't expand the privilege

And then they bounce the rubble: Even if there were a privilege that could be asserted against the Executive branch itself, it would obviously have to yield here to the Executive's need for the documents

And oh, by the way, you definitely shouldn't be appointing a Special Master to review classified material

Then there's another section where they basically repeat the same arguments. That takes us to the attorney-client section, and the end of the legal arguments