Thread by @gabrielmalor

DOJ's response to Trump's "motion for judicial review" argues that is not a thing, that the documents Trump is contesting don't belong to him, that the Court lacks jurisdiction over his weird motion, and that a special master should not be appointed. storage.courtlistener.com/recap/gov.usco…

Gimme a minute, I'm gonna read through and then tell ya about it.

First things first footnote, DOJ is not happy about the order to provide a more detailed receipt of property, but "given the extraordinary circumstances" is willing to "provide it immediately."

Oh, boy, but it's going to get wild after that. Stand by.

Front and center: Trump never asserted executive privilege when NARA came calling, and he never said the documents had been declassified.

DOJ says FBI claimed his passports (before returning them) because they were in the same desk drawer as classified documents and the warrant authorized the seizure of "collectively stored or found together" documents.

DOJ says the government found "more than twice the amount" of documents with classification markings than Trump had previously turned over, including "over one hundred unique documents."

The filing also notes that the documents were found in places other than the "Storage Room" where Trump's attorneys had said they were being kept.

Mens rea.

Alright, that's just from the facts section of the filing. Now we're going to get into DOJ's argument.

(And remember, this is just an argument. The Court is going to rule on this most likely later this week.)

DOJ's first argument is that Trump doesn't own the documents he's trying to claw back from DOJ.

The theory is that presidential records belong to the U.S., not the president.

"Because these records do not belong to Plaintiff, Rule 41(g) gives him no right to have them returned. And because Plaintiff has no such right, this Court should not appoint a special master..."

Here's an interesting sentence: "certain personal effects were commingled with classified material in the Seized Evidence."

Doesn't seem very secure to me. Also, I'm still wondering about 1 and 1A on the receipt.

DOJ is as unimpressed with the Trump lawyer's attempt at civ. pro. as I was.

Oop (this is completely an aside from the merits, but I have to be me), as a writer of many oppositions to motions for a preliminary injunction I'm going to throw a flag for starting "we'll get to likelihood, but we want to talk about irreparable injury first."

Don't do that.

DOJ knocks Trump for waiting two weeks to file the motion seeking a special master to review the seized documents since (1) it already reviewed them all; and (2) it therefore clearly isn't an emergency requiring injunctive relief.

Alright, turning to whether a special master is even necessary, DOJ argues again that Trump has no power to assert executive privilege because (1) he hasn't; and (2) he is not the executive; NARA, FBI, and DOJ are the executive branch.

DOJ cites the landmark Nixon privilege case explaining that "even a sitting President" cannot assert executive privilege to avoid a criminal investigation.

And here we get an answer to the question that keeps coming up on Twitter: "why didn't NARA just keep asking for the documents return before the raid?"

Two things: (1) Trump refused to respond to a grand jury subpoena; and (2) he never asserted executive privilege before now.

Finally, DOJ notes that this whole special master business is usually about seizures of attorney-client material, which obviously isn't the issue in this case.

Recall that the Giuliani and Cohen special masters were because they were attorneys with live litigation.

The response concludes with conditions DOJ is suggesting if the Court rules against it and appoints a SM.

One of them is that the SM be limited to questions of attorney-client privilege. Another is that the SM already have a TS/SCI clearance so everyone can get on with this.

Anyway, lawgeeks, here's the response. storage.courtlistener.com/recap/gov.usco…

Imma flip through it again to see what I missed the first time.

The question is not whether a former POTUS can assert executive privilege. The question is whether a former POTUS can assert executive privilege against the *current* executive. (DOJ says no.)

https://twitter.com/BenAdamsO_O/status/1564830673889796096

The point of this filing is (1) it is quite obvious these documents are marked classified; and (2) apparently they were stored with Trump's TIME covers?

This is a sharp point. If Trump was storing some of the documents with his personal effects it becomes very hard for him to say he didn't know about them. They're with his personal effects, not off somewhere in a dusty room.

https://twitter.com/SeekJustice117/status/1564824936186798080

"certain personal effects were commingled with classified material in the Seized Evidence."

Huh.

Huh.

I award a half chuckle. In indictments, DOJ strives to protect the identities of non-parties.

Here, there are no parties because we're in weird civil/not-civil/not-criminal land in a pseudo-lawsuit that Trump initiated. DOJ has no problem naming him under these circumstances.

https://twitter.com/Hi_Dr_Nick/status/1564836168969101312

As I noted on my first pass through, the passport thing is now dead.

https://twitter.com/gabrielmalor/status/1564821715028480000

But the existence of a "desk drawer" with classified documents in it is in itself worth scrutiny. Was this desk drawer in the Storage Room? Or was it in Trump's office? What documents was he keeping in his office and why? And who had access to them?

"The location of the passports is relevant evidence in an investigation of unauthorized retention and mishandling of national defense information."

Recall that some of Trump's followers originally defended him by suggesting that he should not be expected to know what various unnamed movers brought from the White House to MAL.

If he's keeping his passports with some of the materials, that suggestion holds far less water.

I enjoyed this as well. For DOJ, the phrase "through further investigation" is the same as "yada yada yada" on Seinfeld.

https://twitter.com/KT_So_It_Goes/status/1564841561304727555

"Trump failed to respond to the subpoena and yada, yada, yada, we found out the Storage Room had more documents, so there we were."

Oh, I forgot to mention. DOJ used 35 of the permissible 40 pages. If we're counting.