Deep State Wins

I’m speaking of the 11th Circuit’s beatdown of President Trump and exaltation of the Deep State to the status of virtually a Fourth Branch of government. Well, as long as Donald J. Trump is involved. I read about this last night but was too discouraged to write anything, especially after I realized that two of the three judges were Trump appointees who, presumably, should have known better. This morning Margot Cleveland is all over it, and you can see for yourself how discouraged she is, too:

Margot Cleveland @ProfMJCleveland

11th Cir handed Trump a huge defeat yesterday & with Special Master position on the documents marked classified, Trump's best option is to pivot to midterms & take his case to the people. @FDRLST

thefederalist.comCourt Rejects Trump’s Special Master Review, Instead Trusting FBIRather than continue to fight this losing and expensive battle, Trump should pivot to the midterms and take his case to the public.

Jonathan Turley @JonathanTurley

...The question now is whether the Justice Department will push forward to seek to challenge the rest of the order and the very basis for the appointment of the Special Master. There are roughly 11,000 documents and 1,800 other items being held from the search on Mar-a-Lago.

I happen to disagree with Turley’s article—which, as usual, seeks to be even handed:

Jonathan Turley @JonathanTurley

In the Fox interview, Trump suggested that he could declassify any or all documents "with a thought."  It is a position likely to further alienate both the Special Master and the appellate court.

jonathanturley.orgEleventh Circuit Rules for DOJ on Classified Documents As Trump Claims the Right to Declassify with a ThoughtOn Wednesday, the United States Court of Appeals for the Eleventh Circuit narrowed the order of U.S. District Judge Aileen M. Cannon by allowing the Justice Department to regain access to the rough…

Turley writes:

If a president could declassify with a thought, he could literally declassify every document in the possession of the U.S. government with a constitutional Jedi-like power. No one would know that there was declassification other than the fact the he removed the documents or treated them as declassified.

Trump also appears to be relying on a legal advice defense (as he has with the challenge to the 2020 election and Jan. 6th questions). He makes direct reference to being given different accounts of the controlling law. There are some lawyers who believe that a president has immediate and unlimited authority over classified information. However, Trump is stating that he may not even have to utter a word of declassification to effectively negate the process of declassification as well as the status of documents.

That is clearly not going to go over well with the courts. Special Master Dearie has already lost patience with the Trump team in failing to support declassification claims and, correctly, said that he will proceed under the view that these documents remain classified in the absence of such proof.

Now, Trump undoubtedly expressed himself unwisely and imprudently. However, it has long been considered that a president can declassify by his actions. Obama—and he was probably not unique—instituted a policy (perhaps in writing, perhaps not) that anything he took to his WH residence (i.e., out of the secure Oval Office setting) would be declassified ipso facto.

Let’s apply the Turley Test. Who is to know exactly what documents those were, that were taken to the residence? Was an inventory kept of such documents? What if the president inadvertently took classified documents that he didn’t intend to take—declassified anyway, or perhaps a Jedi-like power created an exception based on lack of specific intent? And, by the way, Turley’s sarcasm regarding a “constitutional Jedi-like power” is misplaced—it’s called being Commander in Chief, and it is in the Constitution, whereas there is no mention of a Deep State or of classification in the Constitution. Turley fails to consider that this position regarding classification, based on an ill considered or possibly badly interpreted statute, has transformed the status of the President of the United States to that of a clerical employee of the Deep State. Strangely, Turley fails to get into the matter that classification to cover for criminal conduct fails.

Likewise with regard to Special Master Dearie’s reported tantrum directed at Trump and Trump’s lawyers. Dearie is demanding “proof” of declassification. Unless some proof is presented—and I assume Dearie probably wants a document memorializing declassification of specific documents—then Dearie says the only proof of classification or declassification is the markings on the documents. Again, an absurd position, when we consider accepted White House practice in the past.

Yet the fact is that Trump did provide evidence of his intent to declassifiy in his discussions with his subordinate officials. That should carry great weight, since it is the president from with all such authority originates. But the Trump standard of justice is different than any other standard. An example of juist how different the Trump standard is from ordinary justice surfaced just yesterday:

Letter Surfaces of Obama Foundation Admitting in 2018 They Keep Classified Documents in Unsecured Storage at Furniture Warehouse

“Hoffman Estates” is a Chicago area location containing an abandoned furniture store and warehouse.  The Obama Foundation leased, then re-upped the lease, to use the facility to store all the paper documents from the Obama administration {Location Link}.

The Obama administration told the National Archives and Records Administration (NARA) they were going to upload the documents into a digital form for use in the Obama library.  The paper documents were, still are, held at the Hoffman Estate warehouse while this digitization process took place.  It should be noted, the Obama Foundation has never digitized the records, hence they renewed the warehouse lease.

But here’s Cleveland’s article for a full legal discussion:

Federal Court Rejects Trump’s Special Master Review, Instead Trusting FBI Completely

Rather than continue to fight this losing and expensive battle, Trump should pivot to the midterms and take his case to the public.

Cleveland goes into a lot of the legal ins and outs, strategizing, etc. Here, however, is what I regard as the core of the ruling:

Obama Judge Robin Rosenbaum and Trump appointees Britt Grant and Andrew Brasher … concluded … that Judge Cannon erred in prohibiting the United States from using the “classified records in its criminal investigation and to require the United States to submit the marked classified documents to a special master for review.” Here, the court found dispositive the fact that there was no evidence that the DOJ had displayed a callous disregard for Trump’s constitutional rights.

The 11th Circuit nonetheless added that Trump failed to show he had “an individual interest in or need for any of the one-hundred documents with classification markings.” Further, even if the documents had been declassified, Trump still hadn’t shown why he had a personal interest in the documents, the court reasoned.

Whoa! It’s well known that past presidents have retained vast amounts of classified documents, without showing any personal need for them—beyond the interests of history and transparency to the public for the future. Do these judges realize that they are enabling a tawdry coverup?

In entering the stay, the federal appellate court also stressed the harm to the government the order created, relying on Alan E. Kohler Jr.’s, the assistant director of the counterintelligence division of the FBI, sworn statement that the United States’ “national-security review is inextricably intertwined with its criminal investigation.” “When matters of national security are involved, we ‘must accord substantial weight to an agency’s affidavit,’” the 11th Circuit stressed. 

The 11th Circuit further found that the “public interest” favored a stay because “the documents at issue contain information ‘the unauthorized disclosure of which reasonably could be expected to cause exceptionally grave damage to the national security.’” Here, the court again relied on FBI Assistant Director Kohler’s declaration to support this finding.

In discussing the “public interest,” the 11th Circuit completely ignored the public’s interest in assuring an unbiased review of the documents — the concern that motivated Judge Cannon’s decision. Wednesday’s opinion instead accepted at face value everything the DOJ and FBI said: that the documents were marked classified and FBI Assistant Director Kohler’s various representations about the harm to national security and the need to advance the criminal investigation in tandem with the national security one. 

Yes, that’s how courts work: The judges accept sworn statements as true and rely on the government’s word, absent conflicting evidence. But it remains hard to swallow that the courts place continued trust in a DOJ that previously submitted four fraudulent applications to the FISA courts to get Trump.

Heads the Deep State wins, tails you lose. But it is a real disgrace that these knuckleheads went along with that.

In response to Wednesday’s decision, Trump could seek the Supreme Court’s intervention, but even if Trump were to prevail with the high court, Special Master Dearie seems unwilling to allow the former president’s attorneys anywhere near the 100-some documents marked classified, unless Trump proves he declassified them. And even then, Dearie may adopt the 11th Circuit’s view that Trump has no interest in reviewing those documents. So even a win might not accomplish Trump’s goals.

Well, this isn’t the end. But I’d be lying if I didn’t admit to being disheartened.