Mar-A-Lago Legally Searched by FBI

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Gunnar
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Re: Mar-A-Lago Legally Searched by FBI

Post by Gunnar »

The Trump judge ruling on the Mar-a-Lago affair is defying established law
Judge Aileen Cannon’s two rulings in the Mar-a-Lago affair offer a master class in illustrating how a young and ideologically-driven judge can badly bungle important issues of law and public policy and distort the proper role of courts in protecting state secrets and supervising criminal investigations. The Justice Department, wisely, is appealing.

It is important to note that Judge Cannon received her appointment when she barely passed the American Bar Association’s minimum length of experience following law school graduation to be considered even minimally “qualified” for the federal bench.

More significantly, she appears to owe her appointment to her membership in the Federalist Society, the virtually exclusive source of Trump’s judicial selections.

Her approach to this dispute between the United States government and the former president has been shaped by a strange blend of the Federalist Society’s ideological influence on her career and a MAGA-cult-like belief that the former president should enjoy almost royal prerogatives.

It was no surprise, therefore, that Trump’s lawyers carefully shopped for her when they chose to file their unprecedented application in her remote courthouse in Fort Pierce, Florida, rather than the one down the street in West Palm beach.

It was no surprise, therefore, that Trump’s lawyers carefully shopped for her when they chose to file their unprecedented application in her remote courthouse in Fort Pierce, Florida, rather than the one down the street in West Palm beach.

The sad story of her management of the controversy over the 11,000 government documents that Trump unlawfully spirited away to his beachfront club began at the threshold of her courthouse. Immediately after Trump’s lawyers filed what should have been a desperately unsuccessful plea to hamstring the government’s recovery and examination of its documents, including highly classified state secrets, she announced that she was “inclined” to grant the request and appoint a special master and to put the criminal investigation on hold.

She expressed that view, even though the request was unprecedented, and she had not bothered to wait to hear from the government before she announced her “inclination.”

A critical hallmark of the judicial process is that responsible judges listen to both sides before making up their minds. As became evident from her initial, formal ruling on Labor Day and from her refusal on Thursday to modify even the most egregious aspects of that ruling, she lacks the wisdom to admit that she got it wrong – and seriously wrong.

Two categories of error are particularly plain and severe. First is her treatment of the issue of “executive privilege.”

Although there are reasons to question whether the original rationale for recognizing executive privilege as an implied presidential prerogative was persuasive at the time and retains validity today, the US supreme court has treated some documents reflecting communications with a president as subject to such presumptive confidentiality. In insisting that the former president can invoke this privilege to keep other officials of the executive branch from reviewing the materials, until her special master reviews all 11,000 documents, Judge Cannon badly misunderstood the crucial limits on any such privilege.

At the outset, this is a privilege that applies only to certain, limited types of presidential communications and prohibits disclosure only to persons outside the executive branch, such as to Congress, to courts, or to the public. That limited scope has been clear since the 1974 decision in United States v Nixon, which one of us (Lacovara) argued and which for the first time recognized existence of a limited executive privilege.

No prior case or other authority has treated “executive” privilege as a basis for concealing information from executive branch officials conducting executive functions, here the Justice Department’s investigation and potential prosecution of federal crimes relating to the mishandling of state secrets and presidential records.

Moreover, Judge Cannon’s wholesale assumption that all 11,000 documents are presumptively within a narrow privilege for confidential presidential communications is unfounded. Her puzzling assertion that “the record suggests ongoing factual and legal disputes as to precisely which materials constitute personal property and/or privileged materials” comes from thin air: nothing in the public record identifies the existence of any such dispute, factual or legal.

In addition, in connection with the request by the House Select January 6 Committee’s work, the incumbent president, Joe Biden, made the determination on behalf of the executive branch that it is in the national interest not to cloak even presumptively privileged presidential communications with secrecy, when relevant to finding the truth about potentially criminal misconduct. The supreme court decision first recognizing executive privilege made that determination inescapable.

Next, one core principle established in the Nixon Tapes case is that any presumptive privilege for even the narrow category of presidential communication must give way to the overarching public interest in investigating and prosecuting federal crimes. For Judge Cannon to ignore that unanimous holding and to hamstring the pending federal criminal probe, based on a sweeping but bogus claim of executive privilege, is egregious.

The second area of abuse concerns the handling of documents marked with classification ratings, many of them at the highest levels of secrecy, involving either signals intelligence or human sources. Judge Cannon is ordering that these documents be withheld from the prosecutors. This is a particularly bizarre and muddled diktat that not only intrudes, in a manner impossible to square with the separation of powers, into the executive branch’s responsibility to investigate crimes but also distorts the executive branch’s responsibility for protecting state secrets.

Trump’s lawyers never argued in court the dubious assertion that Trump has made in political tweets – that he had somehow personally “declassified” any of the highly sensitive documents retrieved from Mar-a-Lago or missing from classification folders there. Despite Trump’s unsupported assertion, it is simply not true that he had “absolute authority” to declassify documents. Under federal statutes and executive orders that bind even the president, there is an elaborate set of conditions that must be met before anyone, including the president, may lawfully declassify documents.

By law, documents relating to nuclear secrets, signals intelligence, and human sources are entitled to rigorous levels of protection, even from access by many senior government officials.

Nevertheless, Judge Cannon apparently relied on Trump’s public tweets to insert and then indulge an argument that even his lawyers lacked the temerity to assert. Compounding her misunderstanding of her proper role as a judge, she expressed unwillingness to “trust” the executive branch’s classification of those documents, despite the statutory regime that expressly entrusts the classification of state secrets to the defense and intelligence agencies. Instead, she decided that her special master, a retired federal judge, would decide whether the materials were properly classified – subject presumably to her own review.

This is a dangerous arrogation of judicial control over judgments assigned by the Constitution and federal statutes to the executive branch official responsible for national security. More than 70 years ago, the supreme court warned judges to be extremely cautious about attempting to conduct their own review of documents containing information relating to the national defense.

Then in the Nixon Tapes case the supreme court carefully carved out from the limited authority of courts to overrule otherwise legitimate claims of executive privilege for presidential communications, concluding that courts have no power to contest the executive branches’ “claim of need to protect military, diplomatic, or sensitive national security secrets,” as the Justice Department has asserted here. The court reiterated the well-settled principle that it “would be intolerable that courts, without the relevant information, should review and perhaps nullify actions of the Executive taken on information properly held secret.”

Twice this year the supreme court reaffirmed this doctrine that determination whether information constitutes “state secrets” is vested exclusively in the designated executive branch officials, and courts may not legitimately second-guess that determination.

Yet that is precisely what Judge Cannon is seeking to do in her zeal to protect what she views as the ex-president’s prerogatives, defying established law and usurping responsibilities that belong elsewhere.

This is what happens when presidents pursue a policy of appointing inexperienced ideologues to lifetime judgeships. The country is paying a very high price for accepting nominees like Judge Cannon.
If (heaven forbid!!) Trump succeeds in being reelected to the U.S. Presidency, it is a sure bet that this inexperienced ideologue and Trump sycophant will be at or near the top of his list of potential nominees for the next Supreme Court vacancy, should that occur while he is in office. This should scare the bejabbers out of any who are both rational and fair-minded!
No precept or claim is more suspect or more likely to be false than one that can only be supported by invoking the claim of Divine authority for it--no matter who or what claims such authority.
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Re: Mar-A-Lago Legally Searched by FBI

Post by Gunnar »

Yet, on the other hand, it is a mistake and grossly unfair to marginalize and dismiss someone merely because they are relatively young and inexperienced. Many of the greatest contributions to human advancement, wellbeing, knowledge and justice for all have been made by people who were relatively very young at the time of their greatest contributions. This is particularly true in the fields of science and math.

A respectable proportion of our most revered founders of our nation were as young as or younger than Aileen Cannon is now. She is 41. In 1776, Thomas Jefferson was only 33, John Hancock 39, Patrick Heny 37, John Adams 41, etc. George Washington was 44 at the time, only 3 years older than Judge Cannon. So her age and relative inexperience should not have been the only consideration, although it was probably the major consideration for Trump and the hard-core conservatives looking for a candidate young enough to help insure long-term predominance of conservative influence in the court system.
No precept or claim is more suspect or more likely to be false than one that can only be supported by invoking the claim of Divine authority for it--no matter who or what claims such authority.
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Re: Mar-A-Lago Legally Searched by FBI

Post by Binger »

Gunnar wrote:
Mon Sep 19, 2022 7:47 pm
The Trump judge ruling on the Mar-a-Lago affair is defying established law
Judge Aileen Cannon’s two rulings in the Mar-a-Lago affair offer a master class in illustrating how a young and ideologically-driven judge can badly bungle important issues of law and public policy and distort the proper role of courts in protecting state secrets and supervising criminal investigations. The Justice Department, wisely, is appealing.

It is important to note that Judge Cannon received her appointment when she barely passed the American Bar Association’s minimum length of experience following law school graduation to be considered even minimally “qualified” for the federal bench.

More significantly, she appears to owe her appointment to her membership in the Federalist Society, the virtually exclusive source of Trump’s judicial selections.

Her approach to this dispute between the United States government and the former president has been shaped by a strange blend of the Federalist Society’s ideological influence on her career and a MAGA-cult-like belief that the former president should enjoy almost royal prerogatives.

It was no surprise, therefore, that Trump’s lawyers carefully shopped for her when they chose to file their unprecedented application in her remote courthouse in Fort Pierce, Florida, rather than the one down the street in West Palm beach.

It was no surprise, therefore, that Trump’s lawyers carefully shopped for her when they chose to file their unprecedented application in her remote courthouse in Fort Pierce, Florida, rather than the one down the street in West Palm beach.

The sad story of her management of the controversy over the 11,000 government documents that Trump unlawfully spirited away to his beachfront club began at the threshold of her courthouse. Immediately after Trump’s lawyers filed what should have been a desperately unsuccessful plea to hamstring the government’s recovery and examination of its documents, including highly classified state secrets, she announced that she was “inclined” to grant the request and appoint a special master and to put the criminal investigation on hold.

She expressed that view, even though the request was unprecedented, and she had not bothered to wait to hear from the government before she announced her “inclination.”

A critical hallmark of the judicial process is that responsible judges listen to both sides before making up their minds. As became evident from her initial, formal ruling on Labor Day and from her refusal on Thursday to modify even the most egregious aspects of that ruling, she lacks the wisdom to admit that she got it wrong – and seriously wrong.

Two categories of error are particularly plain and severe. First is her treatment of the issue of “executive privilege.”

Although there are reasons to question whether the original rationale for recognizing executive privilege as an implied presidential prerogative was persuasive at the time and retains validity today, the US supreme court has treated some documents reflecting communications with a president as subject to such presumptive confidentiality. In insisting that the former president can invoke this privilege to keep other officials of the executive branch from reviewing the materials, until her special master reviews all 11,000 documents, Judge Cannon badly misunderstood the crucial limits on any such privilege.

At the outset, this is a privilege that applies only to certain, limited types of presidential communications and prohibits disclosure only to persons outside the executive branch, such as to Congress, to courts, or to the public. That limited scope has been clear since the 1974 decision in United States v Nixon, which one of us (Lacovara) argued and which for the first time recognized existence of a limited executive privilege.

No prior case or other authority has treated “executive” privilege as a basis for concealing information from executive branch officials conducting executive functions, here the Justice Department’s investigation and potential prosecution of federal crimes relating to the mishandling of state secrets and presidential records.

Moreover, Judge Cannon’s wholesale assumption that all 11,000 documents are presumptively within a narrow privilege for confidential presidential communications is unfounded. Her puzzling assertion that “the record suggests ongoing factual and legal disputes as to precisely which materials constitute personal property and/or privileged materials” comes from thin air: nothing in the public record identifies the existence of any such dispute, factual or legal.

In addition, in connection with the request by the House Select January 6 Committee’s work, the incumbent president, Joe Biden, made the determination on behalf of the executive branch that it is in the national interest not to cloak even presumptively privileged presidential communications with secrecy, when relevant to finding the truth about potentially criminal misconduct. The supreme court decision first recognizing executive privilege made that determination inescapable.

Next, one core principle established in the Nixon Tapes case is that any presumptive privilege for even the narrow category of presidential communication must give way to the overarching public interest in investigating and prosecuting federal crimes. For Judge Cannon to ignore that unanimous holding and to hamstring the pending federal criminal probe, based on a sweeping but bogus claim of executive privilege, is egregious.

The second area of abuse concerns the handling of documents marked with classification ratings, many of them at the highest levels of secrecy, involving either signals intelligence or human sources. Judge Cannon is ordering that these documents be withheld from the prosecutors. This is a particularly bizarre and muddled diktat that not only intrudes, in a manner impossible to square with the separation of powers, into the executive branch’s responsibility to investigate crimes but also distorts the executive branch’s responsibility for protecting state secrets.

Trump’s lawyers never argued in court the dubious assertion that Trump has made in political tweets – that he had somehow personally “declassified” any of the highly sensitive documents retrieved from Mar-a-Lago or missing from classification folders there. Despite Trump’s unsupported assertion, it is simply not true that he had “absolute authority” to declassify documents. Under federal statutes and executive orders that bind even the president, there is an elaborate set of conditions that must be met before anyone, including the president, may lawfully declassify documents.

By law, documents relating to nuclear secrets, signals intelligence, and human sources are entitled to rigorous levels of protection, even from access by many senior government officials.

Nevertheless, Judge Cannon apparently relied on Trump’s public tweets to insert and then indulge an argument that even his lawyers lacked the temerity to assert. Compounding her misunderstanding of her proper role as a judge, she expressed unwillingness to “trust” the executive branch’s classification of those documents, despite the statutory regime that expressly entrusts the classification of state secrets to the defense and intelligence agencies. Instead, she decided that her special master, a retired federal judge, would decide whether the materials were properly classified – subject presumably to her own review.

This is a dangerous arrogation of judicial control over judgments assigned by the Constitution and federal statutes to the executive branch official responsible for national security. More than 70 years ago, the supreme court warned judges to be extremely cautious about attempting to conduct their own review of documents containing information relating to the national defense.

Then in the Nixon Tapes case the supreme court carefully carved out from the limited authority of courts to overrule otherwise legitimate claims of executive privilege for presidential communications, concluding that courts have no power to contest the executive branches’ “claim of need to protect military, diplomatic, or sensitive national security secrets,” as the Justice Department has asserted here. The court reiterated the well-settled principle that it “would be intolerable that courts, without the relevant information, should review and perhaps nullify actions of the Executive taken on information properly held secret.”

Twice this year the supreme court reaffirmed this doctrine that determination whether information constitutes “state secrets” is vested exclusively in the designated executive branch officials, and courts may not legitimately second-guess that determination.

Yet that is precisely what Judge Cannon is seeking to do in her zeal to protect what she views as the ex-president’s prerogatives, defying established law and usurping responsibilities that belong elsewhere.

This is what happens when presidents pursue a policy of appointing inexperienced ideologues to lifetime judgeships. The country is paying a very high price for accepting nominees like Judge Cannon.
If (heaven forbid!!) Trump succeeds in being reelected to the U.S. Presidency, it is a sure bet that this inexperienced ideologue and Trump sycophant will be at or near the top of his list of potential nominees for the next Supreme Court vacancy, should that occur while he is in office. This should scare the bejabbers out of any who are both rational and fair-minded!
You don't appear to understand the law or the courts. Your fear and the fears that you want others to experience do not appear to be fears based in facts or reality.
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Re: Mar-A-Lago Legally Searched by FBI

Post by Dwight »

Trump’s team got their special master and already don’t want to cooperate. The special master asked for more information about Trump’s declassification, and his team blinked, cause they don’t want to actually, in court where there may be consequences, put forth whether or not Trump declassified things.
Last edited by Dwight on Tue Sep 20, 2022 1:30 pm, edited 1 time in total.
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Re: Mar-A-Lago Legally Searched by FBI

Post by Moksha »

Dwight wrote:
Tue Sep 20, 2022 5:08 am
...his team blinked cause they don’t want to actually in court where there may be consequences put forth whether or not Trump declassified things.
The Trump team could put forth the theory that every cheeseburger Trump consumed equaled X number of documents declassified. The Special Master might not buy it, but Judge Canon would find it acceptable.
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Re: Mar-A-Lago Legally Searched by FBI

Post by Gunnar »

Moksha wrote:
Tue Sep 20, 2022 12:11 pm
Dwight wrote:
Tue Sep 20, 2022 5:08 am
...his team blinked cause they don’t want to actually in court where there may be consequences put forth whether or not Trump declassified things.
The Trump team could put forth the theory that every cheeseburger Trump consumed equaled X number of documents declassified. The Special Master might not buy it, but Judge Canon would find it acceptable.
I think you're right. So far, Judge Cannon seems to me to give every appearance of being just another Trump sycophant prepared to go along with and rubberstamp anything Trump wants her to do.
Last edited by Gunnar on Tue Sep 20, 2022 7:11 pm, edited 1 time in total.
No precept or claim is more suspect or more likely to be false than one that can only be supported by invoking the claim of Divine authority for it--no matter who or what claims such authority.
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Re: Mar-A-Lago Legally Searched by FBI

Post by Doctor CamNC4Me »

Image
Hugh Nibley claimed he bumped into Adolf Hitler, Albert Einstein, Winston Churchill, Gertrude Stein, and the Grand Duke Vladimir Romanoff. Dishonesty is baked into Mormonism.
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Re: Mar-A-Lago Legally Searched by FBI

Post by Gunnar »

Binger wrote:
Mon Sep 19, 2022 9:16 pm
You don't appear to understand the law or the courts. Your fear and the fears that you want others to experience do not appear to be fears based in facts or reality.
Then show us where my understanding is deficient and the analysis of Laurence H Tribe and Phillip Allen Lacovara cited in The Guardian article I linked to is wrong. Do you claim to have more or greater legal expertise than the highly respected lawyer and legal expert, Laurence Tribe? Do you even have a law degree of any kind?
No precept or claim is more suspect or more likely to be false than one that can only be supported by invoking the claim of Divine authority for it--no matter who or what claims such authority.
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Re: Mar-A-Lago Legally Searched by FBI

Post by Binger »

Gunnar wrote:
Tue Sep 20, 2022 6:43 pm
Binger wrote:
Mon Sep 19, 2022 9:16 pm
You don't appear to understand the law or the courts. Your fear and the fears that you want others to experience do not appear to be fears based in facts or reality.
Then show us where my understanding is deficient and the analysis of Laurence H Tribe and Phillip Allen Lacovara cited in The Guardian article I linked to is wrong. Do you claim to have more or greater legal expertise than the highly respected lawyer and legal expert, Laurence Tribe? Do you even have a law degree of any kind?
No. I do not have a law degree. I don't need one to address what you claim others should fear. I did not see Tribe's or Lacovara's prediction that an ideologue and sycophant was at the top of the list for Supreme Court nominees. Where did they say this and are their claims the basis of what you fear and what you prescribe that the rest of us should fear?
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Re: Mar-A-Lago Legally Searched by FBI

Post by canpakes »

Doctor CamNC4Me wrote:
Tue Sep 20, 2022 6:40 pm
Image
Exactly.
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