Judge Grants Trump’s Special Master Motion

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Moksha
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Re: Judge Grants Trump’s Special Master Motion

Post by Moksha »

Bad decision. Trump had no right to take secret government documents with him.
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Re: Judge Grants Trump’s Special Master Motion

Post by Binger »

Moksha wrote:
Tue Sep 06, 2022 6:13 am
Bad decision. Trump had no right to take secret government documents with him.
The issue now is that the FBI took documents that they had no right to take.
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Re: Judge Grants Trump’s Special Master Motion

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Binger wrote:
Tue Sep 06, 2022 1:07 pm
Moksha wrote:
Tue Sep 06, 2022 6:13 am
Bad decision. Trump had no right to take secret government documents with him.
The issue now is that the FBI took documents that they had no right to take.
The FBI had been requested to retrieve these stolen documents. They had a warrant signed by a judge. Police and the FBI retrieve stolen property every day. The only thing unusual is having a former President who is a wanton criminal.

Shame you didn't live back in the early 1930s. Al Capone could have used such an advocate.

Making excuses for a demagogue is never a good idea, not for people or Russian AI programs run by the hackers collective in St. Petersburg.
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Re: Judge Grants Trump’s Special Master Motion

Post by Binger »

Moksha wrote:
Wed Sep 07, 2022 3:20 am
Binger wrote:
Tue Sep 06, 2022 1:07 pm


The issue now is that the FBI took documents that they had no right to take.
The FBI had been requested to retrieve these stolen documents. They had a warrant signed by a judge. Police and the FBI retrieve stolen property every day. The only thing unusual is having a former President who is a wanton criminal.

Shame you didn't live back in the early 1930s. Al Capone could have used such an advocate.

Making excuses for a demagogue is never a good idea, not for people or Russian AI programs run by the hackers collective in St. Petersburg.
But the FBI took what they were not allowed to take.
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Re: Judge Grants Trump’s Special Master Motion

Post by Marcus »

Res Ipsa wrote:
Mon Sep 05, 2022 4:45 pm
...Note I’m heading to law Twitter to learn what I missed.

ETA: Too much hysteria on law Twitter right now. Gonna have to wait for some non-handwringing legal analysis.
Thanks for your explanations, and looking forward to what you find.
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Re: Judge Grants Trump’s Special Master Motion

Post by canpakes »

Moksha wrote:
Wed Sep 07, 2022 3:20 am
Binger wrote:
Tue Sep 06, 2022 1:07 pm


The issue now is that the FBI took documents that they had no right to take.
The FBI had been requested to retrieve these stolen documents. They had a warrant signed by a judge. Police and the FBI retrieve stolen property every day. The only thing unusual is having a former President who is a wanton criminal.
It’s nice that the FBI will return what isn’t qualified to be kept, unlike what Trump did.

And what the FBI ends up returning will presumably not put the security and lives of American citizens and soldiers at risk … unlike how Trump’s actions did.
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Re: Judge Grants Trump’s Special Master Motion

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Just to clarify, cp, what the FBI was allowed to search and seize is set out in the search warrant. The Congressional Research Service published a pretty good explainer. https://crsreports.congress.gov/product ... B/LSB10810.

Here’s the warrant: https://www.flsd.uscourts.gov/sites/fls ... Notice.pdf. Attachment A is where the government can search and Attachment B is what it can take. What it could seize is not limited to the documents listed under “including.” It can seize evidence that Trump committed crimes as defined by the three statutes listed in the law. So, for example, the passports are evidence of intent because they were found in the same drawer as three classified documents. That goes to his knowledge that he had classified documents, which is relevant to intent.

But. The government doesn’t have to spend two weeks at Mar Al Lago analyzing everything and making fine distinctions between what is evidence and what is not. It can seize the items, take them to government premises, and then analyze them in more detail. It’s not uncommon for the government to seize item that it determines aren’t evidence. That doesn’t make the initial seizure illegal. There’s standard of reasonableness in the 4th amendment itself. The government doesn’t have to be correct in what it took — just reasonable.

Had Trump not filled his motion, the normal course would have been that the FBI would have provided him with a more detailed inventory of what was taken and the parties could discuss whether there were items that could be returned.

The Criminal Procedure Rule that applies to warrants has a specific procedure for regaining possession of property seized in a search.

Something that’s kind of counter-intuitive is that the federal courts have not held that the attorney-client privilege has any basis in the 4th amendment. There are lots of law review articles in which people contend that it should, but it hasn’t yet. So, seizure of privileged documents has not been held to violate the 4th amendment, but privileged documents can’t be used as evidence at trial or as a tool for the government to find other admissible evidence. So, the government has to have internal procedures to make sure it doesn’t use privileged documents in a way that would sabotage or destroy its own case.

The judicial branch generally doesn’t exercise control over this process until someone is formally charged with a crime. It addresses the issues in a suppression hearing. But not the word “generally.” The Supreme Court has recognized what’s been called “anomalous jurisdiction,” under which a court can step in and address the process before a crime is charged. That’s the jurisdiction Judge Cannon has invoked. And, in my opinion, if the main issue is phrased properly, it’s “how broad is the court’s discretion when it comes to deciding whether to invoke anomalous jurisdiction and was Judge Cannon within that discretion?
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Re: Judge Grants Trump’s Special Master Motion

Post by Res Ipsa »

Marcus wrote:
Wed Sep 07, 2022 5:28 am
Res Ipsa wrote:
Mon Sep 05, 2022 4:45 pm
...Note I’m heading to law Twitter to learn what I missed.

ETA: Too much hysteria on law Twitter right now. Gonna have to wait for some non-handwringing legal analysis.
Thanks for your explanations, and looking forward to what you find.
It’s pretty complicated, and I’m surprised at the superficiality of the analysis by legal experts who should know better. Just as an example, there are experts claiming that the issue of executive privilege has already been resolved through an exchange of letters between NARA and Trump’s lawyers.

But that’s not the position the government took. It took the position that Trump had not, so far, invoked executive privilege. Trump’s lawyers agree: they say the privilege is “in play,” but how can Trump invoke the privilege when he doesn’t know exactly what the government took? And that’s what the judge says as well: to decide whether to invoke the privilege, Trump needs to have sufficient information to decide whether to invoke the privilege. Biden needs to know about about the documents over which Trump is claiming privilege so he can decide whether to waive it. And the Court needs to know enough about the documents to intelligently decide whether to sustain any claim of executive privilege.

Just one problem: The documents we are talking about may include handwritten notes on or about classified documents that the judge herself cannot look at.

So, part of what the special master’s job will be is to figure out how to provide Trump with enough information about documents over which he could potentially assert privilege to make an informed decision about whether to assert the privilege.

And just to keep things clear: The Supreme Court has recognized that there may be circumstances under which a former President can assert executive privilege.

So, although I see all kinds of people saying there’s nothing for a special master to do regarding executive privilege, I think that’s flat ass wrong. Given the state of the law, Trump should be given an opportunity to assert executive privilege over any materials to which the privilege applies. Biden then should be given an opportunity to review any documents over any documents that Trump claims are privileged to see if he agrees. And a judge should rule on any disputes. All Judge Cannon has held on that specific issue is that some third party should determine which documents the privilege applies to and determine how much information should be given to Trump to decide whether to assert it. We’ll know for sure when we see her written instructions to the special master.

And almost every issue is like this: many of the experts are treating how things are done as limits on what the courts can do. It’s personal and professionally disappointing.
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Re: Judge Grants Trump’s Special Master Motion

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The DoJ has appealed the ruling.
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Re: Judge Grants Trump’s Special Master Motion

Post by ajax18 »

Garland better fight this hard. If the special master finds out that the FBI is using Trump's attoeney client privileged documents to get a leg up on Trump's lawsuit against the FBI the entire coverup for crossfire hurricane could get out to the public.

The idea that former presidents can't have classified documents is wrong. Wait till we find out what documents Obama has in Chicago. The criminilization of political thought and opinion is here.
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