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September 7, 2022

In our coverage yesterday about Judge Aileen Cannon’s order for a presumably neutral “special master” to examine the documents seized from Mar-A-Lago, we mentioned a few of her turns of phrase that have since been discussed by top legal analysts. First on the list is that President Biden is a big pants-on-fire liar (our words) for saying he hadn’t been briefed and knew nothing.

As Margot Cleveland explains, “Monday’s order highlighted a key sentence” from the letter that had been sent by the acting head of the National Archives, Debra Steidel Wall, to Trump’s attorneys “that went less noticed by the press.” In that letter, Steidel Wall stated that Biden had decided to defer to the archivist’s “determination, in consultation with the Assistant Attorney General for the Office of Legal Counsel, regarding whether or not [she, the archivist] should uphold the former President’s purported “protective assertion of executive privilege.” She said she’d decided not to honor Trump’s claim of privilege.

We see from this letter that Biden had to have been briefed about this, since, at least according to the acting archivist, he made the decision to defer to her. Indeed –- and this is what we pointed out yesterday –- Judge Cannon’s order included this revelation from Steidel Wall: “NARA will provide the FBI access to the records in question, AS REQUESTED BY THE INCUMBENT PRESIDENT [emphasis ours], beginning as early as May 12, 2022.”

Again, Biden = huge, monumental liar. But we already knew that.

Cleveland puts it less bluntly, focusing on Biden’s direct role rather than the White House’s reeking dishonesty about it: “This language indicates that Biden did not merely defer to the NARA but asked the NARA to give the documents to the FBI. Of course, deferring to the NARA’s judgment equated to Biden authorizing the hand-off to the FBI, but this passage suggests a more direct connection between Biden and the investigation into Trump.”

Another revelation comes through the timeline provided in Judge Cannon’s order, From 2022:

May 10 – acting archivist writes the above letter to Trump’s attorneys

May 11 – DOJ obtains grand jury subpoena for ALL Trump documents marked classified

May 12 – the start date for the FBI to provide investigators with documents (those first 15 boxes)

Cleveland asks the question, WHY would the DOJ subpoena “any and all” of Trump’s documents before even seeing the boxes he was about to turn over? Also, since Biden had already requested that the archivist provide Trump’s documents to the FBI, was it Biden who directed the DOJ to get the grand jury subpoena for everything? We don’t know, but that would certainly explain this timeline.

Cleveland also notes that the judge’s order reflects her thinking that the denial by Biden of Trump’s right to executive privilege is not so cut-and-dried as the DOJ would like us to assume. Judge Cannon wrote that the Biden administration’s position “arguably overstates the law,” noting that the Supreme Court has not ruled out “the possibility of a former President overcoming an incumbent President on executive privilege matters.” (And let’s hope they allow for that, or else no former President is safe from the wrath of an incumbent from the other political party.)

As Cleveland notes, this observation paves the way for Trump to assert executive privilege, prompting a legal showdown with the Biden administration.

Up next, something else we’ve been harping on here: members of the DOJ’s investigative team have already seen confidential attorney-client documents. The raid was a month ago, and since then we’ve been imagining Lisa Monaco, Avril Haines and their minions rummaging through every bit of material carted from Trump’s house, their eager eyes scanning every line of communication to or from Trump’s attorneys. The Mother Lode! One of the reasons they’d opposed the appointment of a “special master” was that they’d had their own in-house “Privilege Review Team” going through the documents first and didn’t need what they called “another round of screening.” Sure they don’t. We’ve already discussed the problems with these “taint teams,” which are made up of the investigators’ colleagues.

Judge Cannon cited a couple of examples wherein the review from this team was faulty and “potentially privileged” material was seen by two investigators, who should have been “walled off” from the investigation at that point but, as far as anyone had told the judge, were not. That’s not something the “special master” can address, she said, but that person can at least determine if OTHER documents were privileged. “If so,” she writes, “the DOJ will have bigger problems.”

It looks to us as though the motto of this investigation should be “It’s better to ask forgiveness than permission.” And they don’t seem to care much about forgiveness, either.

Next, Cleveland points out that Judge Cannon’s order makes clear the staggering amount of Trump’s personal material seized by the Biden administration. Some was “readily identified as personal property” and was “without evidentiary value.” A search warrant is supposed to be specific; this was a fishing expedition that swept up three passports, clothing, medical records (!), and accounting and tax documents.

Our next take-away comes not from the judge’s order but from government filings referenced in it. One of these reveals that the special agent in charge of NARA’s Office of the Inspector General had made a criminal referral on Trump to the DOJ (!) over a document returned to NARA that had been torn up at some point. To the nimble legal mind of Margot Cleveland, this screams “witch hunt,” and she notes that the reference to torn-up documents wasn’t even included in the affidavit for the warrant, at least the part left unredacted. And there’s no justification for redacting that, considering that information was included in another briefing. In Cleveland’s words, “...maybe the DOJ realized that using torn documents as a pretext to search the home of a former President would paint the raid as political –- because it sure does make the special agent in charge’s referral look political.”

Finally, in explaining her decision to appoint a “special master,” Judge Cannon cited the incredible amount of leaking that has gone in with this case. She noted that a government attorney had acknowledged the existence of these “unfortunate” leaks (!) but stated he “had no knowledge” of any leaks stemming from his team. (As if they could have come from anywhere else.) As Cleveland points out, these “unfortunate” leaks point to how politicized this investigation is, for the Mar-A-Lago raid has sprung more leaks just in the past three weeks than than have escaped from John Durham’s special counsel team in three years.

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