Friday Talking Points -- Trump's "Secret Telepathic Unilateral Preemptive Irreversible Declassification" Defense

[ Posted Friday, September 23rd, 2022 – 17:26 UTC ]

We do try to avoid it in general, but this week it is impossible not to lead our news wrap-up with the ongoing Donald Trump Follies. Spoiler alert: it wasn't a very good week in Trumpland.

Here's how one Washington Post writer summed things up:

The legal dangers facing former president Donald Trump rose this week, after the New York attorney general filed a fraud lawsuit that could effectively shutter the Trump Organization and the U.S. Court of Appeals for the 11th Circuit allowed federal investigators to continue their probe into classified documents found at Mar-a-Lago.

. . .

Federal prosecutors have subpoenaed dozens of his former advisers, and many others, as part of a sprawling investigation into efforts to obstruct the transfer of power after the 2020 election. Separately, a Georgia grand jury has been looking at allegations that he tried to obstruct that state's electoral count by pressuring Secretary of State Brad Raffensperger (R) to "find" enough votes to overturn the election.

An aspiring corporate partner for his new social media company has received subpoenas from the Securities and Exchange Commission. District attorneys in Westchester, N.Y., and Manhattan have ongoing investigations of his companies. One of his sexual assault accusers filed court papers last month disclosing her intent to sue him under a recently passed New York law that offers exceptions to the standard statute of limitations for sex crimes.

In the first two of these listed, Team Trump suffered some major setbacks this week. This must have been somewhat of a surprise to them, since one of the setbacks came from a three-judge appellate panel that had two judges on it who had been appointed by Trump himself, and the other setback came from the "special master" assigned to the document-handling case that was Team Trump's personal choice (they submitted his name and the Justice Department didn't have a problem with him, so he got appointed). So much for what Trump calls "loyalty," eh?

What happened this week was Trump's fantasy world (where all legal disputes are decided exclusively in the court of public opinion) met the brick wall of actual jurists who follow the law. As with most smashing-into-a-brick-wall collisions, the result was not pretty.

Trump hit a trifecta of bad legal news this week. At least it must have seemed that way to anyone who subscribes to the "bad things always come in threes" philosophy (full disclosure: we are agnostic on this one -- maybe, maybe not...).

The first blow came from Trump's hand-picked special master, who in a very no-nonsense fashion let Trump's lawyers know that he was going to do an expedient job, he was not going to countenance vague insinuations (without any actual sworn statements), and if the government said documents were classified that was good enough for him:

A federal judge expressed skepticism on Tuesday about the efforts by former President Donald J. Trump's legal team to avoid offering any proof of his claims that he had declassified sensitive government documents that were seized from his Florida estate last month.

The statements by the judge, Raymond J. Dearie, who is acting as a special master reviewing the seized materials, were an early indication that he may not be entirely sympathetic to the former president's attempts to bog down the judge's evaluation with time-consuming questions over the classification status of some of the documents.

"My view is, you can't have your cake and eat it too," Judge Dearie said at a hearing called to determine the process he would use to do a sweeping review of materials seized from Mr. Trump.

. . .

At his first hearing as special master, Judge Dearie seemed to cut through this confusing web, telling Mr. Trump's lawyers in direct terms that he was likely to deem the documents classified -- unless they offered evidence to the contrary.

. . .

"We are going to proceed," he said, "with what I call responsible dispatch."

He shot down Trump's lawyers' attempt to just sort of insinuate that documents were in some Schrodinger's Cat zone of being both "classified and unclassified" until Trump decided it was time to open that box and let the world know. Judge Dearie essentially told Team Trump to put up or shut up. If the government said documents are classified and Trump doesn't explicitly claim they are not, then: "As far as I am concerned, that's the end of it," and he would assume they are classified. Period.

He also said he probably wouldn't even bother to look at the classified documents, since Trump still hasn't made the claim that any of the seized documents are his personal property, and being classified by definition means such documents are government property, telling Trump's lawyers: "If I can make recommendations... right or wrong, without exposing myself or you to that material, I'm going to do it."

In other words, Judge Dearie is going to act in a professional manner, do the job he has been assigned, respect national security, all the while ignoring distracting nonsense from Trump. Which must have been a blow to Trump, one assumes.

The second part of the trifecta happened the next morning, when New York Attorney General Letitia James held a press conference to announce she was filing a civil suit against Trump and three of his children (Don Jr., Ivanka, and Eric) for committing massive bank fraud. She laid out specific criminal charges which could be brought against the Trumps (which she does not have the power to do), which included: "Falsifying Business Records... Issuing a False Financial Statement and... Insurance Fraud."

Here's the whole story:

New York Attorney General Letitia James announced Wednesday that she filed a civil lawsuit against former President Donald Trump and his three eldest children over his long-running alleged tax-dodging scheme.

James hopes to convince a court to take steps to bar Trump, Donald Trump Jr., Ivanka Trump and Eric Trump from conducting business in the state of New York, along with making them pay some $250 million in restitution and limiting their access to loans.

"Donald Trump falsely inflated his net worth by billions of dollars to unjustly enrich himself and to cheat the system, thereby cheating all of us," James said at a press conference outlining Trump's alleged misconduct.

We'll have more on this part of the trifecta a little later in the program.

This move hits Trump at the heart of his corporate empire. If James wins her case, she could effectively run the Trumps out of New York state, at least business-wise. Of course, he's already moved to Florida, but this final rejection of Trump by New York has got to sting at least a little bit.

The third shoe to drop (and we do realize that doesn't make much sense metaphorically, but we're going with it anyway...) was the three-judge panel of the 11th Circuit Court of Appeals pretty much laughing Trump's pet federal judge out of the courtroom. Trump challenged the seizure of documents from his Florida golf club not in the court which had issued the search warrant but instead by court-shopping to select a judge that Trump appointed mere days before he left office. This judge thanked Trump by not questioning his lawyers' bizarre and unsupported claims and by giving Trump exactly what he asked for: a special master to review all the seized documents for both attorney-client privilege and -- without providing a shred of legal reasoning -- for any claims Trump might make in the future of executive privilege. This could have been precedent-setting, since no other court has ever found executive privilege applies solely within the executive branch. She also barred the F.B.I. from continuing their investigation into the classified documents without requiring Trump's lawyers to actually claim that any of the documents had actually been declassified in some way.

The appellate judges tore her legal reasoning to shreds (which we wrote about yesterday in detail, or you can read the entire 29-page ruling from the 11th Circuit if you have the time). The federal government had only challenged the ruling barring the F.B.I. from seeing the classified documents, but the three judges took the time to leave everything else about Trump's pet judge's ruling in absolute tatters.

Trump has been trying to lead everyone down a rabbit hole this entire time. His "defense" (you can't even really call it that, because it isn't) all along is that somehow all the classified documents were magically unclassified and therefore Trump wins and he gets all the papers back. Um... no. That's not the way it works at all.

The three judges specifically addressed this, in what could be the definitive answer to the whole distraction of a question [emphasis added]:

The district court concluded that Plaintiff had an interest in some of the seized material because it included "medical documents, correspondence related to taxes, and accounting information." But none of those concerns apply to the roughly one-hundred classified documents at issue here. And the district court made no mention in its analysis of this factor as to why or how Plaintiff might have an individual interest in or need for the classified documents.

For our part, we cannot discern why Plaintiff would have an individual interest in or need for any of the one-hundred documents with classification markings.

They are "owned by, produced by or for, or . . . under the control of the United States Government."

They went on to patiently explain: Trump "has not even attempted to show that he has a need to know the information contained in the classified documents.... And even if he had, that, in and of itself, would not explain why Plaintiff has an individual interest in the classified documents."

They then made it crystal-clear why classification isn't even relevant:

Plaintiff suggests that he may have declassified these documents when he was President. But the record contains no evidence that any of these records were declassified. And before the special master, Plaintiff resisted providing any evidence that he had declassified any of these documents. In any event, at least for these purposes, the declassification argument is a red herring because declassifying an official document would not change its content or render it personal. So even if we assumed that Plaintiff did declassify some or all of the documents, that would not explain why he has a personal interest in them.

Or, to put it plainly: it does not matter whether Trump declassified anything or not. It is nothing more than a red herring.

One would hope the political media gets the message, because so far Trump has been doing a dandy job of distracting everyone with the "classified or not?" shiny object.

Trump has never -- not even in friendly Fox News interviews -- said why he thinks any of these papers are his personal property. And that is the entire case -- he stole government documents and refused to hand them back. Classified or not, those documents do not belong to him. And so far, he has provided no answer to the question of why he had those documents in the first place.

Thankfully, even two Trump-appointed judges can clearly see what the law actually says and tune out all the irrelevancies emanating from Trump's mouth (and legal mouthpieces).

One... two... three. The legal haymakers just kept coming. And Trump's answer to it all was to double down on the distractions. He claimed on Fox News (in an interview that was taped before the 11th Circuit ruling was made public) that he can telekinetically or telepathically (take your choice) declassify documents:

There doesn't have to be a [declassification] process as I understand it. If you're the president of the United States, you can declassify just by saying, "It's declassified," even by thinking about it because you're sending it to Mar-a-Lago or wherever you're sending it. And there doesn't have to be a process. There can be a process but there doesn't have to be. You're the president. You make that decision. So when you send it, it's declassified. I declassified everything.

By doing so, Trump dug his own legal hole a little deeper, since he flat-out admits that he stole the documents: "...because you're sending it to Mar-a-Lago or wherever you're sending it." This is why normal lawyers will prevent their clients from speaking about impending cases in public, but Trump doesn't take legal direction very well (obviously).

One former F.B.I. agent had the perfect rejoinder:

"Omg he's actually invoking the Secret Telepathic Unilateral Preemptive Irreversible Declassification (S.T.U.P.I.D.) defense," quipped Asha Rangappa, a former FBI agent and attorney.

Seems like either "STUPID defense" or "stupid defense" summed up the legal week for Trump, now that we think about it.

However, Trump's mental gymnastics were a wee bit too far to go, for some Senate Republicans:

Senate GOP Whip John Thune, R-S.D., told CNN on Thursday that there is, in fact, a process for declassifying documents, and that "it ought to be adhered to and followed."

"I think that should apply to anybody who has access to or deals with classified information," he said. "I think the concern is about those being taken from the White House absent some way of declassifying them or the fact that there were classified documents removed -- without sort of the appropriate safeguards. I think that is what the Justice Department is getting at."

Even top Trump allies took issue with the former president's statement that he could declassify documents with his mind, including Sen. Lindsey Graham, R-S.C., who simply acknowledged that "the process is probably more complicated than that."

Sen. Thom Tillis, R-N.C., told the network there is a formal process that everyone must go through when declassifying sensitive material. "As I understand the Executive Branch requirements, there is a process that one must go through," he said.

Sen. Mike Rounds, R-S.D., who sits on the Armed Services Committee, told CNN that the handling of classified documents is a "very serious" issue.

"I think anyone who takes the time to appropriately protect that information and who has taken the time to see what's in the information would have serious concerns about how items could be accessed if they're not stored properly," he said. "And so once again, up here, we take it very seriously. People can get hurt, people can get killed if it's not stored correctly, and if that information gets out."

Which is why all of this is so important -- something Trump would dearly like everyone to forget about. This is national security classified information, and Trump had it stored in his golf resort with only the minimal security imaginable. Anyone could have broken into that storage room and made off with top secret information. That's why this is all so serious, as Senator Rounds helpfully pointed out.

Of course, a few other things were happening this week as well. Trump held a rally in Ohio that took place while an Ohio State football game was being played (a major faux pas in the Buckeye State), and during it went full-on QAnon. Over the past few weeks he's been more and more welcoming to the whole QAnon conspiracy theory, and that all culminated in him playing their anthem and them saluting him with one finger, providing an image that many found reminiscent of the "Heil Hitler" Nazi salute. Trump didn't seem to care.

Two minor stories to close on, in an effort (probably futile) to finish on a lighter note... speaking of anthems, the Space Force rolled out their official anthem. It's pretty bad. Maybe they should have hired William Shatner to write some lyrics and John Williams to provide some better music? Just a thought....

And finally, a shocking post by the surgeon general had many outraged. It seems Vivek Murthy likes to eat ice cream cones without any ice cream in them. Many expressed outrage and concern for his mental state online, after he proudly posted this gastronomic quirk. We remain neutral, having long ago adopted the attitude: "Whatever floats your boat." Whether that means an ice cream float or just a dry cone, we say: "To each his own!"


Most Impressive Democrat Of The Week

Several good bills passed the House this week, from a reform of the Electoral Count Act to a package of four policing bills. Everyone who worked hard to get these sent over to the Senate deserves credit, of course. The E.C.A. reform bill will likely have to be reconciled with a different version which may pass the Senate, so it probably won't make it to President Joe Biden's desk before the lame-duck period, but it is a critical thing to fix so that what Donald Trump attempted after he lost a presidential election can never happen again.

The policing bills may sadly only serve as "messaging" bills, since there probably isn't enough Republican support -- for bills helping police forces out! -- in the Senate. But at least it'll help Democrats defend against Republicans who continue to wrongfully accuse the entire party of wanting to "defund the police," so that's something.

President Biden did attend the United Nations General Assembly this week, after flying back from Queen Elizabeth II's funeral, and he delivered some strong words to Russia. So Biden at least is worthy of an Honorable Mention for showing the world that America can indeed elect adults to be our leaders once again.

But the real Most Impressive Democrat Of The Week this week was Letitia James, New York's attorney general. Here is some more of what is included in the civil suit she brought this week against Donald Trump and three of his adult children:

Prosecutors in New York have been looking into [Donald] Trump's real estate business practices for several years following reports that he routinely undervalued and overvalued assets to avoid paying his fair share of taxes. [New York Attorney General Letitia] James said that "a comprehensive three-year investigation" involved a review of millions of documents and interviews with 65 witnesses. Along with members of the Trump family, the suit names Allen Weisselberg, the Trump Organization's former longtime chief financial officer, alongside his right-hand-man Jeffrey McConney.

James' office is also making criminal referrals to federal prosecutors and the IRS, believing the Trumps to have violated federal law.

. . .

She gave several examples: One asset in New York City had been listed as being worth over 60 times what an appraiser had valued it. Mar-a-Lago, Trump's South Florida golf resort, was estimated to be worth $75 million, but James said it had been "valued as high as $739 million" on documents her office reviewed.

"All told, we uncovered more than 200 examples of false and misleading asset valuations that were used on his statements," James said, calling the pattern an "astounding" one.

She added: "It was a scheme that by its very nature became more profitable over time."

The hefty lawsuit is around 280 pages long and contains details on 23 assets that were misvalued at various times.

It bears mentioning that this is just one of the legal headaches Trump either faces or will face in the very near future. But James was first out of the gate -- the first one to file an actual court case against Trump. This wasn't done hastily -- it was the result of an investigation begun after Michael Cohen spilled the beans during Trump's presidency, after all.

James even had a soundbite ready to go: "This wasn't the 'art of the deal'... it was the art of the steal."

Just for being the first to (perhaps) hold Trump accountable for all his wrongdoing, New York Attorney General Letitia James is our Most Impressive Democrat Of The Week.

[Congratulate Senator New York Attorney General Letitia James on her official contact page, to let her know you appreciate her efforts.]


Most Disappointing Democrat Of The Week

Once again, we are happy to report that we have no candidates for the Most Disappointing Democrat Of The Week award this week.

As always, feel free to make nominations down in the comments.


Friday Talking Points

Volume 678 (9/23/22)

A mixed bunch, this week.

Oh, a program note for those of you who don't already know: the House Select Committee on January 6th is planning their fall season opener for next Wednesday, September 28th. Be sure to stock up on popcorn! Season One was pretty captivating television, so we have high hopes for Season Two....

But let's move on to this week's talking points, for now.


   Fund The Police

The House made an attempt to defuse an issue Republicans have used as a political bludgeon this week.

"Four bills to fund police and encourage reforms in how policing is done passed the House this week. Taken together, this is a major effort to both support police officers and help them do their jobs, including (among other things) providing mental health professionals to aid cops when dealing with a situation involving someone with behavioral issues. The main bill in this legislative package funds small local police departments who don't have big-city budgets. It will provide to them equipment, including body cameras, and will allow small police departments money for recruitment and training -- including de-escalation training. But, sadly, while some of these commonsense bills passed with a large bipartisan majority, dozens of Republicans voted against funding the police. And you can bet we will be reminding their voters of this, out on the campaign trail."


   GOP issues vague and gauzy promises

This is just a joke. So point it out.

"House Republicans today released yet another attempt to re-bottle the 'Contract With America' lightning, a document that supposedly tells the voters what they would do if they took control of the House of Representatives. This is notable, since in 2020 the Republican Party didn't even bother putting out a platform document at all. But it's pretty weak beer, when you try to figure out what they're actually standing for. There are no details, there are no specific promises, there is just an oatmeal-like mush of 'elect us, and everything will be wonderful... somehow' happy-talk. While Democrats are busy getting things done in the House, Republicans would be hard-pressed to agree on anything if they took charge -- that's the real takeaway from their so-called 'Commitment To America'."


   Trolling Ted

Too, too funny.

"Senator Ted Cruz (R - Cancun) got caught doing something lots of Republicans try to get away with -- claiming political credit for something he didn't vote for. In this case, it was highway funding for the state of Texas. Cruz puffed his chest out and bragged about all the wonderful federal money coming to his state, but the White House had some shade to throw. In fact, it only took them five words: 'Senator Cruz voted against this.' Nice try, Rafael. Next time, maybe try not lying to your constituents, for a change."


   Speaking of despicable lies...

Every so often a politician gets caught doing this, and they usually go down in flames immediately afterwards -- and rightly so.

"J.R. Majewski is running for a House seat in Ohio. He's been endorsed by Donald Trump. He supports QAnon. He attended the January 6th insurrection. None of that stopped the GOP from backing his candidacy to the hilt, but finally we have found something that is so reprehensible that the party itself walks away. In his campaign, Majewski has bragged about his service in the Air Force, saying things like: '[my] squadron was one of the first on the ground in Afghanistan after 9/11.' Except that, you know, it wasn't. Majewski actually spent six months of the war safe on a base in Qatar, where he helped load planes. The majority of his service was spent in Japan. He lied about participating in a war, which is an insult to every servicemember who did serve in the war zone. And when he got caught in this lie, the Republicans decided they had heard enough and yanked almost a million dollars in ad money from Majewski's race. So finally we know that there actually are depths to which Republicans still won't stoop."


   I'm with STUPID

Hoo boy. Funniest quip of the week, by far!

"A former F.B.I. agent had the best response to Donald Trump claiming he could just mentally declassify documents on the fly -- he called it the 'Secret Telepathic Unilateral Preemptive Irreversible Declassification defense.' Because, as Forrest Gump taught us all, 'STUPID is as STUPID does.' Maybe Trump's next act will be bending spoons with the awesome power of his mind? At this point, it wouldn't surprise me to see him try."


   The reddest of herrings

Hammer this one home, until the media starts to get it.

"Three appellate judges -- two of them appointed by Trump -- rightfully pointed out in a decision this week that all of Trump's talk about classification and declassification does not matter. Not one whit. Not one iota. It is, as they put it, nothing more than a red herring. Repeat after me: Trump took the documents. They weren't his. He refused to give them back, and lied about it. He still hasn't said why he even thinks they are his. But they did not and do not belong to him. And taking things which do not belong to you is a crime. You'll notice that not once in there was there any mention of anything being classified or not because it is a red herring that just does not matter."


   So which is it, Ron?

He caught himself, but that doesn't erase the fact that he said it.

"Senator Ron Johnson made a curious slip of the tongue the other day, saying (and I quote): 'My ranking member would always be bringing up white supremacy, which, you know, I condone... I mean... I... I... condemn.' Your Freudian slip seems to be showing, Senator. Johnson, of course, has made racist statements in the past, such as saying he wasn't worried about the January 6th rioters but that he would have -- if they had been Black Lives Matter instead. He actively plotted to overturn the 2020 election, and colluded with the fake electors scam. Wisconsin voters will have the chance to send Mr. 'I Condone... I Mean I Condemn' packing this November. Wisconsin deserves better than Ron Johnson in the Senate. This is just another reason why."

-- Chris Weigant


Follow Chris on Twitter: @ChrisWeigant

Cross-posted at: Democratic Underground