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Trump in a corner

Still gaming the system

The investigation into Donald Trump’s theft of government documents may yet evade his attempts to stall it indefinitely (or at least until Republicans retake the House), but that’s not certain. It’s Maggie Haberman, but here’s what’s news:

A onetime White House lawyer under President Donald J. Trump warned him late last year that Mr. Trump could face legal liability if he did not return government materials he had taken with him when he left office, three people familiar with the matter said.

The lawyer, Eric Herschmann, sought to impress upon Mr. Trump the seriousness of the issue and the potential for investigations and legal exposure if he did not return the documents, particularly any classified material, the people said.

The account of the conversation is the latest evidence that Mr. Trump had been informed of the legal perils of holding onto material that is now at the heart of a Justice Department criminal investigation into his handling of the documents and the possibility that he or his aides engaged in obstruction.

In January, not long after the discussion with Mr. Herschmann, Mr. Trump turned over to the National Archives 15 boxes of material he had taken with him from the White House. Those boxes turned out to contain 184 classified documents, the Justice Department has said.

It’s not likely the DOJ would indict Trump over the documents he gave back. Trump kept others, as the ubiquitous photo from the FBI’s August search of Mar-a-Lago demonstrates. Since then, he’s tried to delay with his insistence on a special master (Raymond Dearie) to settle what needs no settling: executive privilege (he has not claimed) does not extend to seized national defense information (NDI) documents that by definition are not his. Nevertheless, U.S. District Judge Aileen M. Cannon acceded to Trump’s demand. Trump’s team refuses to itemize documents he does claim and which he allegedly declassified.

Marcy Wheeler tweets:

People are, universally, misunderstanding why Trump refuses to tell Dearie what docs he declassified.

If they provided a list of, say, 3 docs he declassified, it would be a confession that he willfully retained 100 classified docs. 

It’s not so much they’re afraid to lie.

It’s that they need to sustain uncertainty about declassification until such time that someone — Cannon, presumably, can say, “well stupid idea, but not unreasonable for you to leave with the crown jewels.” 

The only way to stave off indictment is to make it harder for prosecutors to convince a jury (the jury gets to decide these things, not Aileen Cannon, not even Avril Haines) that these docs are NDI.

The only way to do that is to sustain uncertainty. 

One other thing to keep in mind: As I laid out here, Cannon edited the boilerplate Special Master language to give herself authority to fire Dearie for reasons OTHER than it’s taking too long. emptywheel.net/2022/09/16/ail…

Aileen Cannon’s Special Master Is Designed to Preempt Decisions Reserved for a Jury – emptywheel A number of details about Judge Aileen Cannon’s plans for a Special Master provide ways to pre-empt decisions a jury in a Trump trial would make.https://www.emptywheel.net/2022/09/16/aileen-cannons-special-master-is-designed-to-preempt-decisions-reserved-for-a-jury/

If Dearie thinks Cannon might fire him merely for being a good-faith jurist (she would!), then by forcing these issues out in the public early on, it nevertheless serves the purpose of revealing the game. 

And so it’s not so much we’ll get BRIEFING about where the 41(g) challenge should be.

It’ll become clear early in the process that such issues of law are not the point and were never the point. 

It’s infuriating to watch Trump game the legal system so shamelessly. But that is his game. He’s played it for decades.

Trump’s lawyers are not making arguments about law,” Wheeler adds. “Trump’s goal here is to sustain the conflict until such time as Jim Jordan can save him, and the two of them can resume their frontal assault on rule of law again.”

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