I Take A Lap

I’m very pleased with the Trump team’s response to DoJ’s attempt to prevent review of the FBI’s Mar-a-Lago Raid. Readers will recall that back on Friday, Status Of The MAL Raid In Court, I summarized the Deep State’s attempted assertion of its supremacy:

For practical purposes, the DoJ position amounts to asserting that the Deep State—or, Intel Community, if you prefer—is the sole party for deciding such matters, simply by asserting that the documents … are classified. DoJ is clearly implying that the courts should simply butt out if DoJ asserts a “national security” interest. Who thinks there aren’t qualified people with high level clearances to serve as special master? So what’s this about harm in sharing the docs with a special master. Why not John Ratcliffe? DoJ’s claims are, to me, quite shocking. I’d like to see them slapped down hard. Judges aren’t stupid, and the implications for our constitutional order aren’t hard to see.

This is the argument that the Trump team has placed front and center in their response, starting on p. 4:

First, the Government’s position incorrectly presumes the outcome—that its separation of these documents is inviolable and not subject to question by this Court or anyone else. Second, the Government’s stance assumes that if a document has a classification marking, it remains classified irrespective of any actions taken during President Trump's term in office. Third, as noted above, the Government continues to ignore the significance of the PRA. Indeed, if any seized documents (including any purported “classified records”) are Presidential records, President Trump (or his designee, including a neutral designee such as a special master) has an absolute right of access to same under the PRA. 44 U.S.C. § 2205(3). Accordingly, President Trump (and, by extension, a requested special master) cannot be denied access to those documents.

In addition, the Government’s claims of “irreparable harm” to the Government“ and the public” [ECF No. 69 at 2] appear exaggerated. In seeking the extraordinary relief of this Court staying its own order, the Government once again brushes off any measure of judicial involvement. The Government argues that the Intelligence Community review of documents now solely in the FBI’s possession cannot withstand a brief pause. Moreover, the Government contends that the FBI and ODNI, and their personnel, are so inseparable they are incapable of having agents outside the criminal case participate in the ODNI-led investigation. This convenient, and belated, claim by the Government relative to enjoining the criminal team’s access to these documents only arises because the FBI concedes [ECF No. 69-1] the Intelligence Community review is actually just another facet of its criminal investigation. [SeeECF No. 69-1]. Indeed, the declaration that “the IC assessments necessarily will inform the FBI’s criminal investigation,” id. at 4, effectively concedes the intelligence review is in fact part of that criminal investigation.3

It’s important to bear in mind that many of the documents that were seized were not classified at all, and some were clearly purely personal (medical records, for example). In effect, therefore, the Deep State position amounts to the claim that, once a national security interest has been asserted—a bare assertion—the Deep State has sole and unquestionable jurisdiction over the disposition of any documents that it claims custody. That, even though the Deep State acquired the documents through judicial process in an overbroad warrant and search. The courts must put a stop to this, because it amounts to a Deep State coup.