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Notes -
Trump’s request for a special master was granted in mid-September. Judge Dearie was supposed to present results this month, but this may have been pushed back to mid-December after continued difficulties. As of October 21st, dispute resolution is ongoing.
On the DoJ side, the same judge who appointed this special master had originally barred use of any related documents in a criminal investigation. The DoJ appealed, and got part of her order overturned. Trump countered, but was denied by the Supreme Court.
Immediately afterwards, the DoJ requested an end to the special master process. They argued Trump has not met his burden of proof for invoking an unusual process which interferes with normal DoJ operations. Trump’s team obviously disagrees, and is scheduled to brief the court on November 10th.
In summary, September saw fights over classification markings, and October resolved them in the DoJ’s favor. The special master is still reviewing documents, while the DoJ is still conducting both their criminal and natsec investigations.
The Supreme Court has declined to get involved. We’re likely to see a minor development on the 10th, but no substantive change until Dearie wraps up or gets ruled out entirely. Neither will happen until late November at the earliest.
Scrolling down through search results on this topic rapidly descends into amateur, partisan speculation. Now it’s time for me to do my part.
@FarNearEverywhere: Regarding your comments in the election thread, I don’t think it’s surprising that things have been quiet compared to August. Law is slow and, despite media attempts at mining for soundbites (“where’s the beef?”), relatively boring. Raids or arrests or even subpoenas are the exception rather than the norm. Funneling most of these thousands of pages of evidence through one special master should be expected to slow things down.
This is probably working as intended. Defense gains nothing from blazing through the process; Trump’s team has consistently aimed for delay. Even though I personally believe their claims are spurious, this is law as she is played—cautiously exhausting all options. The fact that it suggests a nothingburger to his base is just a bonus.
My model of Trump places “5D political maneuvers” much, much lower than “avoiding charges,” so I don’t think it’s terribly productive to speculate about the midterms. If his legal strategy considers politics at all, it’s more likely about not kneecapping his own candidacy.
He’s also been careful not to make specific claims of declassification. This is good for national security, preventing FOIA requests, but it’s particularly good for Trump. He benefits from strategic ambiguity, where proponents can “whatabout Hillary” and opponents can’t point to specific harms. Given that I don’t expect him to ever furnish proof of declassification, I think minimizing reliance on such actions is smart.
I will maintain that while Trump may or may not have violated classified information laws, he is dead-to-rights guilty of violating the PRA. The same absolute mess of filing which allowed him to get a special master at all means that something in there will count. He is caught in a dilemma between claiming executive privilege, however shakily, and asserting that documents are personal. Judge Dearie has already observed this contradiction, and I’m confident that some such documents are under the PRA umbrella.
I will also stick with my earlier claim that he will see no meaningful charges. No prison time, no barring from office. NARA got their documents back. The rest of the executive got their classified information secured. We have not seen evidence that he actually wanted to pass secrets on. As long as that continues to be true, I don’t expect much.
Any thoughts on what happens to future presidents with this having the appearance of setting a precedent?
How do you mean?
I don’t view this as setting much precedent. To get here,
The POTUS had to have a truck of documents at his home office
He/his staff had to partially comply when NARA requested all presidential records
His filing system was sloppy enough that NARA could tell it was partial (intermingled documents)
He had to stonewall follow-on requests for ~18 months
I figure most presidents probably get off this train at stop 2. Surely Obama or Bush brought work home—but with a party apparatus, transition team, and experience with security clearances at their backs, they didn’t try to hold on to half of it. Seriously, it remains a mystery why Trump’s team picked up this sort of liability. Without knowing why, any precedent is going to be fairly obvious.
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