Thread by @rgoodlaw

Big takeaways from Trump’s filing.

First, Trump's team make concessions that could pave way for Judge Cannon to amend (or re-"interpret") her Order on preventing FBI/DOJ's criminal investigatory use of August docs.👇

However, doesn't amply resolve DOJ/FBI concerns, and...

1/

2. ... and for Trump's team to concede that DOJ can continue to use "criminal investigative tools" - well, of course, those can be used only if USG has a genuine criminal purpose. It means the Order should allow for dual-purpose national security assessment and criminal purposes.

3. Trump's line of argument also veers into mere assertion that Judge should disbelieve the Declaration by FBI Assistant Director of Counterintelligence that the intelligence assessment and criminal investigation are inseparable.

@harrylitman nails it.👇

https://twitter.com/harrylitman/status/1569335535495446528

4. Second, Trump's team has basically nothing - NADA - to say about lack of a FPOTUS' executive privilege over these documents.

Means Trump would lose on merits, and no need for Special Master for these documents.

DOJ's brief is excellent on this score.

5. Even if an FPOTUS can assert Exec Privilege over presidential communications, does NOT apply to "state secrets and sensitive information concerning military or diplomatic matters."

Read @mls1776 (discussing Nixon v. GSA and Justice Kavanaugh's views):
justsecurity.org/83012/the-abse…

6. Third, as much as this filing is a preview of Trump's defense to criminal charges, he has an _extremely_ weak hand.

a) Criminal charges don't depend on classification.
b) "Personal records" or whathaveyou, he was given a subpoena (see @emptywheel👇).

https://twitter.com/emptywheel/status/1569333053448769538

7. More on weak hand against criminal charges.

c) The allusions to key documents (including National Defense Information) being "personal records" is going to be laughed out of court.

d) Trump's claims are inconsistent with turning over docs in January and June.

8.

e) Trump's lawyers come very close to claiming Trump converted key documents to his personal use (if not key docs, why raise it?) and he knowingly kept all the docs stored at MAL, including ones that should be with Archives. They'd be foolish to put such ideas before a jury

9. Fourth:

Judge Cannon should realize if - based off Trump's brief that fails to even contest key points - she rejects USG's narrow request to amend Order for these national security docs, the Court of Appeals will most likely rapidly overturn her order.

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