Let’s hope not
Here’s a righteous rant about today’s Trump ruling from Kurt Eichenwald. I’m not sure he’s right in every respect but it’s cathartic to read it anyway:
I kept an open mind. I really did. But reading Judge Cannon’s ruling left my jaw on the floor in its absurdity. Unless the federalist society wants to argue that this precedent would only apply to trump, this ruling would demolish future white collar criminal investigations. One of the most absurd things is her discussion of how an indictment in the future – something not even in play ye – would cause “reputational damage” to Trump. The argument she is making is not that an indictment would result from a criminal investigation and grand jury but rather be act of bad faith and whim.
This makes the “presumption of innocence” apply, not in court, but during an investigation before anyone has even suggested a crime has been committed. Then she talks about the “power differential” between a former president and DOJ which requires that the target of a search warrant essentially be placed on an equal footing with the criminal investigators *during the investigation.*
This, she says, must be done under the growing conservative legal theory of “Stomp feet and scream ‘that’s not fair!’“ If there had been a finding of bad faith or dishonest affidavit in support of search, there could be actions that the judge could take. But that is not even an argument here. It is purely “not equitable” meaning the subject of an investigation needs to be on an equal footing with the DOJ in managing the documents obtained in the investigation. Stopping the investigation in its tracks – while still allowing the intelligence agencies to proceed – also demonstrates that this idiot judge doesn’t even understand the basics of how government works.
DOJ and FBI have divisions that deal with national security and intelligence – that is why we have agents and prosecutors with clearance to handle national security cases. That was how there was a criminal investigation of Robert Hanssen, the FBI agent turned spy for Soviet the Russian intelligence services. This was an intelligence case. The CIA is, under law, only allowed to deal with intelligence issues overseas. DIA only allowed to deal with military issues. NSA cannot (despite wildly incorrect understanding of how it works) collect info on US citizens, or even foreign citizens on American soil. Everything domestic falls to the FBI.
If the FBI was developing evidence of a foreign national having broken in to Mar-a-Lago storage room, without knowing what nation that person was working for yet, that inquiry is dead in its tracks right now. FBI has to stop using documents. They can develop nothing further (presumably, otherwise this ruling makes no sense, even more than it doesn’t make sense on its face). Can they continue to feed data to the CIA? How could they? We are now in a national security crisis because “that’s not fair!”
Now, any person with a reputation – say there is an investigation of the CEO of Citigroup for laundering money for the Medillen cartel – this dumbass ruling would have the “reputational damage of a possible indictment” kick in to justify having the investigation stop in its tracks and share information DURING THE INVESTIGATION with the subject of the investigation. Or, what if the person invoking “that’s not fair! Wahhh!” doctrine is not even the subject of the investigation, but still had a search warrant executed on his home (a not unusual investigative event.” That person would equally have the ability to stop the investigation in its tracks.
Next, for the first time in history, a Judge is saying that executive privilege does not belong to the executive but to whoever happens to have been president when the documents were created. The law *specifically* says that is not true. But Judge MAGA says the Nixon case doesn’t speak to that. So? Is she saying the law on executive control is potentially unconstitutional? No, she is declaring a Supreme Court case doesn’t speak to it – which, in fact, it does – without invalidating or questioning the law on this.
Now, every former president can stop the functioning of any current administration by declaring that every document produced during his prior administration is covered by the “former guy has executive privilege” standard, leaving current government flying blind. Or is the judge saying this only applies to stolen documents? There is not a “these documents were taken in violation of presidential records act.so therefore a former president has authority over them.” There can’t be a delineation between documents that were stolen and those left behind on executive privilege.
So, what if Clinton as former president invoked executive privilege on records pertaining to Al Qaeda? Or Bush invoked executive privilege on all documents pertaining to the Iraq war after Obama took over? The reason that all executive documents, past and present, belong to the executive as defined under the constitution and not an individual president is because the government is there to protect and advance the interests of American citizens, not just one guy sitting around who is out of government. Could Obama have invoked executive privilege on all of Hillary Clinton’s emails? Those were issued as part of the executive branch so why not? Oh! I know! Because the entire idea is frigging absurd and outside the law.
This ruling MUST be appealed immediately. If it is not, criminal investigations can easily be crippled based on this absurd precedent, the functioning of the executive branch can be crippled, and people *could be killed* because domestic intelligence efforts would be put on hold while a special master is found, reviews records, figures out which should go to the former president and….oops! Terrorists detonated a dirty bomb in New York City. Damn these Fox News, federalist society jackasses who truly care nothing about America, and only about party. These people are going to get us killed all for propaganda purposes.
Originally tweeted by Kurt Eichenwald (@kurteichenwald) on September 5, 2022.
I just love the idea that an investigation into Trump causes “reputational damage.” Lol.