Thread by @AkivaMCohen

OK, #LitigationDisasterTourists, let's make today a twofer and read through Trump's reply to the DOJ's filing

Let's start with this:

He's not the fucking President anymore, guys. And that kind of makes a huge difference in this case, too

They're trying to start off with a bang, but this fizzles, badly.

The "extraordinary" position of the DOJ is that they get to evaluate whether there was a crime and if so whether to prosecute?

My dude, we call that "Wednesday"

Seriously, separation of powers is a thing. The number of cases that say "no, there's no oversight of the DOJ's decisions on whether to pursue a case and the only check on that power is political" are legion.

And Trump knows this, because that's what HIS DOJ argued in Flynn

Aileen Cannon was appointed by Trump, yes. But she's also a former Federal prosecutor. She knows this.

This is exactly the wrong note to strike in a reply brief. You started out with a narrow "we need a Special Master to protect privilege" that she was leaning towards. Now?

Now you're shifting that to "we need a Special Master to serve as an independent counsel and take this out of prosecutorial discretion"?

No, that's not going to help convince her.

BRB

This is word salad that leans into the "oversight" argument and then even further from there into "really, what we're doing is challenging the warrant" and wow is this just bad

Trump is making an argument that he obviously has standing to challenge the warrant. And he DOES. But DOJ never denied that.

What they said was he lacks standing to make a 41(g) motion for return of property he has no right to. Those are two different things

And here's the thing: Trump's initial motion was NOT a challenge to the warrant, and appointing a special master to oversee privilege review - the relief he's asking the judge to grant him - has nothing to do with "challenging the warrant"

Similarly, granting a special master to oversee privilege review would do NOTHING to provide oversight of the DOJ's charging decisions.

The start of this reply is therefore deeply counterproductive. It's conceded that what Trump is *really* looking for here isn't a "neutral observer" to "protect the privilege" but a way to stop the DOJ from charging him. And that's not relief the court has power to grant

This, by the way, is absolutely goddamn precious

If you think the government mischaracterized facts, you put in a Declaration with testimony, under penalty of perjury, detailing what they are lying about.

You know what dropping a footnote in your brief that says "they're totally telling it wrong, trust me" does?

Guys ... this isn't a challenge to the warrant. You don't get a special master because you think the warrant shouldn't have issued

Also, there's nothing remotely inconsistent in saying that Trump had no right to possess the Presidential records, and also that Trump's conduct violated multiple criminal statutes, not just the PRA.

This isn't a "pick one" situation

OMG, there's just so much here.

Let's start with the fucking crazypants idea that nobody should have been surprised that documents classified TS/SCI were just floating around the former president's office in Mar-a-Lago

TS/SCI information must, by law, be stored in a SCIF.

A SCIF includes things like dedicated HVAC, soundproofing, faraday cages, no external connectivity ...

Anyone want to bet on how many of those the storage room or Trump's office at MAL has?

Also, the law prohibited Trump from taking Presidential records to Mar-a-Lago in the first place. So the argument seems to be "once you knew he broke the law by taking records at all, you should have assumed he'd of course be jeopardizing national security at the same time"

ALSO also, this cuts directly against Trump's "I secretly declassified things" argument; if "Trump taking documents to Mar-a-Lago" magically declassified them, then nobody should have expected any classified records to be there - just *declassified* ones

Admitting that your client actually committed the crimes that the warrant sought evidence of, as part of the introduction to your reply brief arguing the warrant is political persecution is ...

I lack the words

OK, we have to move on from the "of course he had the classified documents at Mar-a-Lago, why wouldn't he" line.

How about "Trump voluntarily complied by giving 15 boxes, the stuff that later got taken was his Presidential records, too"

"I voluntarily complied with the Archives demand that I follow the law and return my illegally taken Presidential records when I returned some but not all of them"

THAT's the argument you're going with? Really? Really really?

How about "NARA ignored the PRA and initiated a criminal investigation"?

First, do you know what the PRA has to say about former Presidents retaining classified information and storing it in an unsecure facility?

Is there anything at all in the PRA that says "and if you have a concern that the former President violated the law, you cannot report that to the DOJ"?

Anything in the PRA that says "if a former President just refuses to turn over Presidential records you just have to keep asking nicely and hope they change their minds"?

Of course, they then say "but never mind all that" because ... well, I don't know. If you're not going to argue about it, why are you using your entire intro on it?

Also, there's exactly nothing in the Presidential Records Act that confers a "broad right" on former presidents "to possess documents". Quite the contrary, actually - Presidents have that right under the act. FORMER Presidents are required to turn the documents over.

This entire nonsense exists because Trump believed turning documents over to NARA would be a concession that he lost the election, doesn't it? That's why he keeps describing it as "voluntary"

1) Yes, he has standing. Arguing otherwise was an unforced error by the government.

2) What in the world is that last line supposed to mean? They're seeking judicial review ... of the currently pending motion?

This, however, is a terrible argument. They grounded their motion on the idea that a special master was important to preserve the ability to make a 41(g) motion. They can't then say "so it doesn't matter whether any such motion would have a snowball's chance in hell"

Bottom line - the gov't should never have framed this as a standing issue, but "any 41(g) motion is doomed because he has no possessory interest in Presidential records" is a good point and they aren't responding to it. At all.

And now they've basically conceded that point and are arguing "he still has standing to contest the warrant because of his interest in the searched premises"

Which, 1, yes, he absolutely does. 2, you're not doing that now. And 3, if you're successful the entire search will be suppressed so why do you need a special master if your only challenge is to the validity of the warrant?

Right. The only thing the law requires is that the former President not take Presidential records with him when he leaves office, and also cannot do so (with the intent to retain them out of office) while still President

Yeah, this is exactly what they should be arguing. But then they also need to deal with the "so what's the point of a special master then" problem, and they don't bother

This is really terrible advocacy though.

"Other cases involving seizure of privileged materials require a special master, but we won't deal with the fact that that was all involving lawyers and multiple clients"

And there's effectively no response on Executive Privilege

They spent exactly zero time addressing the Nixon cases. They spent exactly zero time addressing the fact that they're looking to use executive privilege to impede core executive branch functions.

They have nothing to say.

I ... WHAT?

Did they really just argue to the Court that "Yes, your honor, it's actually critically important that you prevent the national security apparatus from assessing and mitigating the damage from my client's haphazard storage of national security information"?

Either I'm having a stroke or they are; there's no in-between

What the actual everloving FUCK does this even mean?

This is astonishingly bad lawyering. No, "I don't trust the DOJ" is not a basis to have a special master appointed. And there isn't a citation to be found, anywhere.

This is what you would get if you handed James Joyce the file and told him to draft the reply

This is actually a valid complaint. But it's not one that should be made to this judge, not one that should be coming up for the first time on reply, and there's no reason attorney-client privileged docs should have been mixed with classified info

Yes. That's what happens when you wait two weeks and there's only 13 or so boxes of documents to review. How long did you think it would take?

I'm sort of skipping through this next bit because it's jumbled repetition of the same complaint "the filter team should have reviewed EVERYTHING" in different forms.

And then we get to this, complaining that the filter team has the option to either seek judicial review of potentially privileged docs, just hold them aside, or contact Trump.

Why are any of those options not sufficient to protect the privilege?

THEY HAVE UNCHECKED DISCRETION TO DO ANY ONE OF THREE THINGS THAT ADEQUATELY PROTECT ME!!

Anyway, that's it on the argument. I'm not going to bother with the piece on what they want the special master to look like.

Gnight all