I have read the entire Government filing. I spend all day, every day, litigating against the Government, so some of this is familiar stuff to see. This particular brief is very well-done.

Here are the highlights:

1) The facts. NARA negotiated in 2021 for the missing
records. They finally got 15 boxes. After going through them and finding all kinds of classified records (not organized at all), they raised the alarm. They wanted to make a referral to the FBI but had to first consult with Trump's team, per the PRA procedure. Trump's team
delayed for weeks and weeks, and never substantively responded. Finally, NARA told Trump's team they were making the referral and rejected the "protective" assertion of Executive Privilege.

2) At no time did Trump's legal team file an action *at that point* to prevent the
referral to FBI.

3) The FBI reviewed the records and the criminal inquiry was opened. A grand jury subpoena was issued to Trump's team. Again, they delayed and delayed in complying. Finally, in early June they agreed to a meeting at MAL to comply. They turned over more
classified records, and swore out a statement that they had done a diligent search, they had not found any more classified records, and any records that remained were in the storage room. They refused to let the FBI agents look at the boxes in the storage room.
4) The FBI gathered new evidence that there were in fact more classified records at MAL, including in locations outside of the storage room. They got the search warrant and found approximately 100 additional classified records, some located in Trump's own office.

5) That is
straight up obstruction and concealment of classified records, and willfully retaining them in an unauthorized location.

6) Now come the legal arguments. First, DOJ says Trump lacks standing. The records are not his: they are the property of the US. Even if he wanted to claim
them as personal records, he never did so. He did not do so in 2021, he did not do so when subpoenaed, he never did it. He has no possessory interest in the records.

7) Second, they argue Trump is not entitled to any injunctive relief. Again, these are not his records, he
waited way too long to even try to stop the FBI from getting the records, he's not entitled to relief given Executive Privilege would not apply, and even if it did the criminal investigative need outweighs it.

8) Third, the Special Master is moot. The A/C privilege records
were already separated and are set to be evaluated by the magistrate. The records Trump claims are covered by EP are not his anyway, and the Nixon precedents make clear he cannot invoke it to override the need to conduct a criminal investigation.

9) To sum it up, Trump took
PLAINLY MARKED classified records to MAL, he delayed, obstructed and resisted Government efforts to recover them, he (or his staff) concealed the records from investigators, and they got caught doing so.


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More from @BradMossEsq

Aug 27
The Government literally fights @MarkSZaidEsq and me tooth and nail to prevent us from participating in the classified portion of prepublication review cases, even though we maintain active security clearances. They have been fighting to prevent cleared clients from having
access to a stand alone, secure computer on which to draft an affidavit for submission to the court in response to government arguments about the propriety of classification determinations. Their argument each time is clear: only the government can grant authorization.

The idea
they are going to do anything other than go nuclear on the idea of letting a Special Master participate in a review of property marked classified documents in a criminal investigation is ludicrous.

I look forward to seeing how this plays out. /end
Read 4 tweets
Aug 27
I have read Trump’s legal team’s supplemental filing and I am thoroughly confused.

They say a magistrate judge can’t provide injunctive relief. That may be the case - I’m not an expert on that statutory nuance - but they still haven’t properly filed for a preliminary
injunction under Rule 65 anyway.

Plus, the crux of their issue is their desire for a Special Master and that is exactly the kind of thing you do bring before the magistrate. So why didn’t they? They don’t say.

Also, on the merits, they still provide no explanation for why a
Special Master is warranted here. They cite to cases involving searches of a lawyer’s office. Trump isn’t a lawyer. They don’t cite to any case in which a Special Master handled issues of classified information or Executive Privilege. And I am not aware of there being any
Read 5 tweets
Aug 23
@DavidAsmanfox thank you, I am well aware. As was explained at the time, one of the key problems is that these were not properly marked classified documents or e-mails. This was "spillage": information contained in unclassified e-mails sent to or received from unclassified government accounts
@DavidAsmanfox and Hillary's private e-mail account. That was information that never should have been included in an unclassified e-mail exchange, even if on a government e-mail account only, but the FBI found no evidence of intentional or willful efforts by Clinton to knowingly put classified
@DavidAsmanfox information in her e-mails or to solicit classified information in the e-mails that were sent to her from unclassified government e-mail accounts.

As Comey also noted, in no case could they find an indication the government had prosecuted someone simply for recklessness.
Read 4 tweets
Aug 22

The more I read Trump’s motion, the more I am completely confused and shocked he got three lawyers to risk their law licenses by filing this thing.

1) what kind of motion is this? What authority is he invoking to provide the court with jurisdiction? Is this a preliminary
Injunction? Is it seeking an emergency “Franks” hearing? What is this motion exactly?

2) how are they establishing venue? They filed in the wrong district court as best I can tell (h/t @steve_vladeck)

3) why are there no exhibits or sworn affidavits attesting to any of the
facts listed in the motion? Are they deliberately asking for the government to just unleash on them in the response pleading?

4) what is the standard of review? I have no idea what standard they’re saying the judge should even be using in evaluating any of these issues in the
Read 6 tweets
Aug 22
This filing is what they were preparing?

Actual lawyers did this?

It is rife with rank speculation for which the reviewing judge is going to slam them. They claim political persecution, potential nefarious motives by DOJ NatSec Division and bad faith in the warrant application
but cite to zero actual evidence. It’s all speculation. Speculation alone is not going to carry the day here.

They raised the issue of a special master on august 11th but waited until today to file for one? What were they doing all that time? Twiddling their thumbs?
The demand for review of PRA records subject to possible executive privilege is ludicrous. DOJ is part of the executive branch and NARA is the rightful custodian of the records. Not Trump.

This is a fundraising stunt. This *might* get some traction on the margins because of
Read 4 tweets
Jun 29
I can't believe I have to do this but since so many in Trump apology land are doing their best to undermine Hutchinson's testimony let's revisit what she testified to that was from firsthand observations and is not disputed.

1) The White House had intelligence that the 1/6
crowd was armed. People going through the Mags had been armed and the weapons were confiscated. Other people with more serious weaponry were staying outside the security bubble to avoid losing their weapons.

2) Meadows is told the crowd is armed. He doesn't care.

3) Trump
is told the crowd is armed. He doesn't care.

4) Trump gets so made that the Mags are thinning his crowd "shot" he demands USSS back down and let everyone in. When told they can't because of safety concerns tied to the weapons, he says he doesn't care b/c the attendees aren't
Read 7 tweets

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