Two pings on the FBI raid on Mar-a-Lago: Classification kerfuffle and Trump’s RICO suit

Knowing much that isn’t so, and other adventures.

There is a whole lot else to say, so my apologies up front for not saying it.  I just want to keep this short (well, shorter than it would otherwise be).  Consider this an open invitation to say whatever seems to live loud within you and demand saying.

Ideally, the comments on classification of documents, presidential authority, and Trump’s holding of documents out of office would be even shorter than they’re going to be.

The bottom line on everything is that Trump was the president until 20 January 2021, and in most cases the president isn’t subject to the same agency regulations and procedures everyone else is.

That doesn’t make a clean single-color area for the president to operate in, however.  Rather, it generates a gray area largely governed by negation. It’s not actually simple – except from the standpoint that trying to find an enforceable provision of statute law that constrains the president to do things only in a certain way is a lot harder than just agreeing that his authority covers pretty much whatever he wants to do, with few exceptions.

Kerfuffle

The main restraints on the president are statutes that prescribe in advance the classification level of certain national security information, such as categories of information about U.S. nuclear weapons and some U.S. national technical means or human-intelligence means for intelligence collection.  Those prescribed classification levels, to the extent they are codified by statute, were voted on by Congress and signed into law by a president.  Even the sitting president can’t just deem qualifying information to be unclassified or less classified than prescribed in those statutes.  (He can choose to share it when it normally wouldn’t be – that’s a policy decision that statute law can’t eliminate his discretion over – but sharing it doesn’t declassify it.)

President Obama signs an executive order. White House image

Virtually all of the information that that point applies to is enduringly significant information about the nature and capabilities – not the product – of the U.S. national security apparatus.

The product of intelligence collection is not handled by statutory prescription in the same way.  That product is what most of the public has passing familiarity with.  The product is time- and event-specific, and not only constitutes virtually all of what gets routinely declassified on age-out dates, but is routinely “sanitized” by authorities lower than the president to be used in less-classified or unclassified settings.  Similar though not identical points apply to classified information about U.S. operations, for which the most publicly familiar model is military operations.

As regards these types of classified information, the agencies writing the guidance for classification procedures and handling all work for the president.  Their baseline reference documents are a combination of presidential executive orders and departmental guidance documents (e.g., those maintained by the Departments of Defense and Energy, and the Office of the Director of National Intelligence).

We’ve had an eruption of Sudden Classification Experts in the last four days, to go along with the laughably political drumbeat from Democrats and the media about “Trump ‘stealing’ Top Secret documents!” and “Nuclear secrets at Mar-a-Lago!” (which somehow quickly transitioned, in the space of a paragraph or so, to “Trump giving nuclear secrets to the Saudis!”).

I hope it goes without saying that the conclusions being leaped to by hostile media and anti-Trump politicians are utterly inane.  In very short order, the proponents are going to want us all to forget they ever said what they’ve been saying in the last few days.

No one actually knows the things they’re all so sure of.  That’s because there isn’t a written guidebook for what the president can and can’t do, in terms of declassifying operational or intelligence-product information, or in terms of keeping what are probably mostly copies of presidential documents at an ex-president’s government-authorized and -funded post-presidential office.

That’s prelude to the meat of this point, which brings in the guidance John Solomon referred to on Friday 12 August as meaning that the president can declassify whatever he wants, when and however he wants.

There’s an extent to which that’s true, but it has its limits.  It doesn’t apply to types of information whose classification is prescribed by statute.  It does apply to the operational and intelligence-product information that eventuates day to day in the life of the U.S. government, over all of whose executive-agency operations the president has the ultimate executive authority.

Hold that thought in your head now, as I spot you the references John Solomon spoke of.  One is Obama’s E.O. 13526 of December 2009.

The other is George W. Bush’s amendment to a Clinton E.O., 12958 of 1995, which Bush published in March 2003.

The content of the Bush and Obama documents is mostly the same.  Inspect them at your leisure.  These are the E.O.s from which Solomon got this paragraph in his 12 August article:

 “Information originated by the incumbent President or the incumbent Vice President; the incumbent President’s White House Staff or the incumbent Vice President’s Staff; committees, commissions, or boards appointed by the incumbent President; or other entities within the Executive Office of the President that solely advise and assist the incumbent President is exempted from the provisions of paragraph (a) of this section,” the Obama order stated.

According to Solomon, this provision is the basis for the practiced alluded to in his article, by which Trump had a standing order as president that anything he took to the residence to work on became declassified.

Solomon includes this update from a Trump source on Friday:

“He had a standing order that documents removed from the Oval Office and taken into the residence were deemed to be declassified,” the statement added. “The power to classify and declassify documents rests solely with the President of the United States. The idea that some paper-pushing bureaucrat, with classification authority delegated BY THE PRESIDENT, needs to approve of declassification is absurd.”

That framing of the issue isn’t egregiously out of bounds.  Finding anything in law that makes the president conform his work habits to a paper-pushing bureaucrat’s approval schedule is no slam-dunk.

What it is, however, is non-customary, and off-center in terms of what’s being accomplished.  If POTUS’s goal is to work with classified material outside the West Wing, that’s what he has aides for.  Uniformed flag and general officers, who can’t get away with what the president (or, let’s be honest, the secretary of defense of the secretary of state) can get away with, typically make it their aides’ problem to tote around the classified material they need to work with away from their offices.

The president might do the same; e.g., have an aide retrieve whatever classified material he’s been working on when he’s done for the night, and make sure it magically appears when next the commander-in-chief needs it.

That said, I’m not going to second-guess the Trump administration’s practices.  Unlike Secretary Clinton, Trump’s White House managed to avoid spraying Top Secret documents through email servers around the world, and Trump has continued to manage that in the 18 months since he left office.

Destroyer of worlds?

The sticking point is going to be what kind of classified documents are at issue in the Mar-a-Lago raid, and how other elements of government would know they’ve been declassified.

The wording in the two executive orders would have a fairly simple first-order reading.  Information originated by Executive Office of the President (and Vice President) entities is exempt from the handling requirements for declassification – those requirements typically written by subordinate agencies to deal with the agencies’ classified work product.

That reading doesn’t include, say, intelligence product reports from NSA or CIA that circulate in the EOP in some form.  However, the president is the ultimate classification authority for such products, whether for original classification or declassification.  Nothing in law says the president himself can’t declassify them, nor does anything affirmatively state that he – personally, himself – has to do so in accordance with the declassification procedures used by the relevant agency.  The latter concern depends largely on the purpose for declassification.

If the president wants the originating agency, other agencies, the other branches of government, or the public to know that the information has been declassified, that’s when he would do best to use the formal procedures that clarify exactly his intention.

Which is what Trump did at the end of his presidency with the declassification of Crossfire Hurricane material.  He had the material formally declassified in the guidance-prescribed manner, according to criteria of his choosing – which is his right as president – and communicated the result to DOJ.  That was because he wanted it to be published.

On the other hand, as far as we can tell – and it’s not very far, since we know practically nothing for certain – Trump doesn’t appear to have had the documents reportedly removed from Mar-a-Lago on 8 August formally declassified by bureaucratic paper-pushers.  (On the other hand, the documents from Mar-a-Lago may be the declassified files on Crossfire Hurricane. None of us knows one way or the other on that.  Kash Patel thinks they are.)

Kash Patel speaks to Epoch Times in 2021. Epoch Times video, YouTube

Such a procedure would include annotating the documents as declassified, striking through the original classification markings, and commemorating the act with reference to identifying document details (e.g., date and subject line) in a memo, email, etc.  A National Archives summary of procedures is here.  (It’s abbreviated but covers the basic.)

Whichever files they are, since the documents were just sitting there at Mar-a-Lago, it’s not clear how necessary the formalities would have been from a pragmatic point of view.  If harm was done to national security because an agency was not notified that its product had been declassified by the president, while the product’s content lurked peacefully, undisturbed, and made no mysterious appearance outside of secure venues, that would probably be a first in terms of harm-vectors.  We’d have to check.  The agency would have been treating the document(s) in question as classified anyway.

Of course – of course – such a situation is potentially problematic from the standpoint of general infosec (information security).  It’s no worse than what cabinet secretaries have been doing with email accounts and portable devices for the last 20 years, but it’s potentially problematic for the integrity of classification standards.  It’s worrisome practice.  At a given time, we may not be able to trust what a president is doing.

But what he’s doing isn’t inherently a criminal matter just because it’s questionable practice.  His political party may think what he’s doing is just dandy.  So might his voters.  The other political party may think it’s appalling.  Security mavens are likely to be taken aback and think it’s an a priori bad idea.

But presidential discretion doesn’t end where departmental regulations start – and the ultimate reason for that is that presidential actions are inherently disputable, first and foremost, as matters of policy, not of conformity with rules the president could rewrite overnight if he chose to.

Before wrapping this up, we should note that the statutes cited in the 5 August warrant aren’t about classification practice at all – nor are they about the president holding materials from his presidency after he’s left office.  That’s because there are no statutes that would support a probable-cause warrant premised on either consideration.

During 8 August 2022 FBI raid, Secret Service agents stand guard at entry access point for Mar-a-Lago, former President Trump’s Palm Beach home.  Via KHOU 11 video, YouTube.

What Merrick Garland’s DOJ had to do to justify a warrant for boxes of documents was cite specific statutory misuses of classified information the former president might be engaged in.  There’s no evidence we’ve ever seen of any such engagement, but citing such statutes was the only way to justify going after the documents.

This is just one reason Garland is being skewered for the absurdly broad nature of the warrant.  It really is a case of “give me the crimes, I’ll find you the man.”  The warrant dangles statutes like carrots the horse can’t catch up to.  It’s written to justify seizing documents, not to aid the investigation of real, alleged crimes with a statutory premise.  It’s a fishing expedition.

But circle back once more to the bottom line stated at the top.  No one knows for sure all the things people have been stating with impressive certainty this week.  We don’t even know what was in the boxes.  Many jets need cooling.  Secure from Alert-5.

President Trump was, by his own account of the standing order for declassification, exercising discretion that as a general matter isn’t prohibited to him by law.  We have no idea if there are specific cases (e.g., the “nuclear information” allegation) where actual statutory constraints might be in play.  You don’t; I don’t; the Washington Post doesn’t.

The end result, if that point ever has a day in court, which it probably won’t, is likely to be that, sure enough, that’s what Trump was doing – exercising discretion – and the courts have no interest in legislating about it from the bench.  Congress might, I suppose.  I predict it will be the least of Congress’s worries, if we get to the day when all the shenanigans of the last 6-7 years come in for a thorough wirebrushing under a klieg light.

The RICO suit

The disposition of classified material isn’t really what this is all about anyway.

This section, we really will keep brief.  I want to address just three points.  One of them is pretty big, but has gotten little if any attention.  It’s at the end,

The first and easiest is that Magistrate Judge Bruce Reinhart – of Jeffrey Epstein defense fame – signed off on the Mar-a-Lago warrant for the U.S. District of Southern Florida a mere 44 days after recusing himself from the Trump RICO case against Hillary Clinton et al.

Judge Bruce Reinhart appears on Newsmax TV in 2015. Via YouTube

The list of recusals on the Trump RICO suit is impressive.  The first magistrate judge to be assigned recused the day after the case was filed in March 2022.  Reinhart himself was put on the case as magistrate judge in April because his predecessor recused.  Since Reinhart, three more magistrate judges have recused (here, here, and here).  The current magistrate judge, Patrick M. Hunt, has hung in there for about five weeks now.

But the RICO suit has a very interesting factor of its own to enliven this recusal history.  The day before Reinhart recused (that is, 21 June 2022), Trump’s counsel filed an amended complaint.  The original complaint was entered in March 2022; the amended complaint is a humdinger, more than doubling the number of facts asserted in evidence.

I haven’t had time to go through all the added facts (many of which, like the originals, come from John Durham’s court filings).  The amended complaint also added some defendants.  It was after this filing that the exit parade of magistrate judges began.

That brings us to the second point.  Also ensuing on the filing of the amended Trump complaint was a request from the U.S. Department of Justice (“United States”) to substitute itself as defendant for five of the original defendants:  Comey, McCabe, Strzok, (Lisa) Page, and Clinesmith.  The request was filed 14 July 2022.

Said U.S. Attorney Juan Antonio Gonzalez:  “Because plaintiff’s tort claims [against the five defendants] are based upon conduct within the scope of these former FBI employees’ employment with the government, the United States is the sole and exclusive defendant for those claims. … The Court should substitute the United States as defendant for James Comey, Andrew McCabe, Peter Strzok, Lisa Page, and Kevin Clinesmith.”

Then, inevitably:  “Upon substitution, the Court should dismiss the United States [as a defendant] for lack of subject matter jurisdiction.”

U.S. Justice Department. Wikimedia Commons

This was a big move by DOJ to get the Crossfire Hurricane/FISA-faking team out of the line of fire in Trump’s RICO suit.  Those who aren’t following the RICO suit closely probably haven’t even heard about it.  It’s interesting that DOJ asserts Kevin Clinesmith’s alleged behavior – falsifying claims for the FISA authorization on Carter Page – was conduct within the scope of his employment; but let that pass for the moment.

Here’s the really interesting thing, at point three.  The trial judge, Donald Middlebrooks, granted the motion to substitute on 21 July 2022.  He dismissed the FISA Five from the list of defendants and substituted the United States.  But he acknowledged Trump’s right to come back with counterargument on that, and he deferred ruling on the DOJ motion for outright dismissal, after the United States was substituted.

And that’s when DOJ, which had known about the material at Mar-a-Lago for months (since at least February 2022, if not before), and had sent the FBI to look through it on 3 June 2022, actually pounced.

On 4 August, Trump filed in opposition to the judge’s 21 July decision to substitute United States and dismiss the complaint against the FISA Five.  The opposition motion opened with this uncompromising Argument heading:  “DEFENDANTS ARE NOT ENTITLED TO WESTFALL CERTIFICATION AS THEY ACTED OUTSIDE OF THE SCOPE OF THEIR EMPLOYMENT IN MALICIOUSLY PROSECUTING PLAINTIFF.”

The same day, Trump filed opposing Hillary Clinton’s earlier motion to dismiss the RICO complaint (the Clinton motion having been made on the basis that Trump had failed to state a claim).  His counsel also answered in opposition to motions to dismiss from four other defendants.

The warrant for the Mar-a-Lago raid was requested and issued the next day, 5 August 2022.

The DOJ’s substitution move in July frankly shapes up as a tactic to put the United States into the RICO lawsuit as a defendant, where it wasn’t one before.  Then it’s followed by a fishing-expedition raid on Mar-a-Lago on a remarkably thin pretext, accompanied by a barrage of wild media speculation about nuclear secrets, espionage, Saudi Arabia, and my personal favorite (so far):  a theory that Trump’s possession of a file on Emmanuel Macron is connected to a scheme to give the Russians kompromat on the French president.

This is maneuver warfare going on, not the stately-paced pageant of law enforcement and jurisprudence.

It’s doubtful the purpose of leveraging the United States into the lawsuit was solely to get the suit dismissed.  If that doesn’t work, there are still things the United States can do that no other defendant can, to make Trump’s life as the plaintiff difficult.

If nothing else, the raid on Mar-a-Lago will probably succeed in getting material Trump may have hoped to bring in evidence to the RICO suit stamped all over with “pending federal case.”

If you think about it, DOJ already knew what Trump had on the DOJ/FBI RICO defendants sourced from classified federal records.  Trump had the information DOJ – and ODNI – already knew how to collect and assemble.  Perhaps he had more than was contained in the package of declassified materials he sent to DOJ in January 2021 for publication; perhaps he had only that.  If the Justice Department sought to verify such suspicions either way, it was during the FBI inspection at Mar-a-Lago in June 2022 that that was probably done.

But now, even if Trump had copies held separately and could still deploy the declassified materials to build a case for his RICO suit at trial, DOJ has its hooks in the information, and a damaging counter-narrative in the media already underway.

Feature image:  The Eisenhower Executive Office Building. Wikipedia.

19 thoughts on “Two pings on the FBI raid on Mar-a-Lago: Classification kerfuffle and Trump’s RICO suit”

  1. It’s been amazing that no other pundits have noted the connection between Trump v. Clinton, et. al., or Durham’s Oct 11 2022 Danchenko trial, and the Aug. 8 MaL Raid.

    Am sure you noticed this, but, more recently, Durham got court approval for 30 (thirty) blank subpoenas, and notified the Court that he will personally be prosecuting in the courtroom for the Oct. 11, 2022 Danchenko trial, with another new lawyer, a CybercrimeRICO specialist.
    I now wonder if some of those thirty subpoenas had the blanks filled in.
    Is not Durham using same info/docs as Trump v. Clinton, et. al. ?

    Bravo for more details related to
    The day before Reinhart recused (that is, 21 June 2022), Trump’s counsel filed an amended complaint.
    Adding a related thread:

    Jun 22 – – A lot happens this day following amended complaint:
    – Judge Reinhart recuses himself
    – Kash Patel named as Rep for Trump Archives; John Solomon also granted access
    – FBI subpoenaed surveillance footage from MAL
    – John Eastman’s phone confiscated.
    https://twitter.com/huntersmomma7/status/1558629251129249800
    https://threadreaderapp.com/thread/1558629189846171649.html

    1. On a lighter note, is the FBI trying to decode the weaves in FL Melania’s sweaters? Or the plaids? Micro-dots hidden in the Manolos?
      On July 1, 2018, she wore this Prada all cashmere sweater detail. Made in Italy.
      https://uploads.disquscdn.com/images/b9daa574536310f2c74b745f5f01251335c6964e5e97022d7bd5055e2c12d79a.jpg

      p.s. recently read The Fabric of Civilization, by Virginia Postrel. Weaving taught people to think in binary code. Italy!

    2. Thanks D4x. I’d forgotten the timing on Eastman’s phone. The rest of it, especially FBI going after the surveillance footage, seemed to have informative timing though.

      I’m not sure the impact of the amended complaint came just from its appearance on the scene and the implication that Trump is still determined with his lawsuit. I’ve got to dig into those endless “facts,” which increased so significantly in the amended complaint, and see if I can find a clue to something that would prompt the scalded-cat reaction from DOJ.

      No agency of the federal government was named by Trump as a defendant, which heretofore kept the bottomless resources of the government out of the lawsuit. Judge Middlebrooks’ decision to allow the substitution has put “US government” right in the middle of it.

      DOJ didn’t do that protect the FISA Five. Everyone’s expendable. They did it to gain a leveraged position inside the lawsuit, so they can find ways to punish Trump from the inside and better control the emergence of information in discovery, including having a vested interest in WHAT is discovered. The US government is in a much better position than a slew of private-party defendants to force Trump to reveal things, or get things suppressed that the government doesn’t want exposed.

      1. Thanks for your reply. imho, Durham serving some of those 30 ‘blank’ subpoenas might have been the trigger for DoJ to get things suppressed that the government doesn’t want exposed. My assumption is Durham relies on many of the same declassified docs that T45 needs for Trump v. Clinton, et. al.

        When that news broke, neither TechnoFog nor Prof. MJ Cleveland speculated as to who would get one of those subpoenas. My #1 guess was Jake Sullivan, if only for his linkage to Danchenko through Brookings, and his tweet as HRC’s campaign manager as evidence in the Sussman trial. If Jake got served, it is possible his wife Margaret Goodlander had a chat with Garland at a backyard Air Fried Cricket Brunch. (It is not clear if she is still AG Garland’s legal counsel at DoJ.)

        I rely on the real sleuths to connect these dots, but, Judge Reinhart’s June 22 recusal does mean something, as Alina Habba has emphasized.

        And, keep in mind it was T45’s personal injury lawyer Michael van der Veen who got acquittal in the second impeachment.

  2. Whatever else, the FBI, DOJ, and IC have forfeited the benefit of the doubt.

    Attorney-client privileged papers were taken, as well as a dinner menu and a cocktail napkin.

    Going through Melania’s clothes is a low “see what we can do” move.

    Trump knows how to keep secrets, you don’t become a success in NYC real estate without keeping your cards close to your vest.

  3. This was a pure and simple act of political intimidation by a completely rogue Department of “Justice” and it’s subcomponent the Democrat Party Praetorian Guard otherwise known as the FBI.

    If the Archivist, specifically the office with sufficient clearance, access, and need to know, suspected that Trump had specific documents in his possession that the Archivist’s that office concerned about, the Archivist’s counsel would draft a subpoena with the specific documents requested referenced by document number. That subpoena would be “blank” for public release, to allow for the public record of the action, but the contents would be classified and handled under the rules laid out by the Classifying Authorities. Of course, you noted that there are such things, and I am not going to go into the details as they are not particularly pertinent, here since both you and I know them well.

    The point is that there is one “Trump Card” in the deck… of the chain of the classifying authority and that is the Command Authority (Commander in Chief). Short the limitations that you have generalized, but are very specific in the regulations, the President as CINC can regularize his/her own method of declassification, and proceed, legally, to conduct his business in that fashion. If DJT wrote the EO for handling docs, and those document numbers in question do not appear on the archivist’s catalog (we’ll call it) as a special access document, then there is nothing to be seen or questioned outside of a normal inspection and verification that already seemed to have occurred and been finalized. In the case of special access documents that may have inadvertently found their way to Mar-a-Lago… well, those documents are well known within the confines of those regulations, cataloged, and should have already been recovered with the original subpoena. Any left-over items would have been a process error on the part of the Archivist and re-access and re-acquisition of the documents in question would be a matter of routine follow-up. No raid, no anything… just a polite call to the lawyers… an update to the subpoena… and a quick visit of a few of the personnel with the appropriate clearances to handle and transport the material. Maybe a mild warning issued by the Archivist to remind the former President of the situation and his obligations under the terms of his separation NDA. It’d have been over in a matter of a few weeks and nothing would have come of it.

    This was another FBI/DOJ/Deep State Political hit job. They are lashing out in desperation now, because Trump’s movement is taking over the GOP, pushing out Establishment toadies, and threatening to elect their feared “Ultra MAGA” boogiemen to positions of power over the next two national elections. The person most feared is DJT since a man with nothing to lose and the power of the chief executive and an angry and stirred up sympathetic majority in Congress might actually pull the plug on the swamp, and hold power for 12 years.

    The stop Trump at all costs blood red flag is up. They’re playing “El Deguello”. No wonder they’re trying to erase the Alamo. It might remind us of the cost of their tyranny and overturning it (though still politically at this point).
    -OAB

    1. Yes, Trump may have regularized his procedure, as you say. It wasn’t my intent to draw attention to that, as the last thing this whole scenario needs is DOJ in search of another piece of paper or digital file. (OTOH, I assume people at DOJ, or others in whatever brigade of the “cabal” is running this thing, know it already. That said, it’s best to not speculate about some things just because one knows they could be speculated about. Kind of like options the US has against China, or Israel has against Iran: no need to amplify noise or interest unnecessarily.)

      1. True… very true… No one in this regime seems to be sufficiently aware of the need for strategic ambiguity.

        The Administrative/Deep State is arrogating unto itself by power of bureaucratic process a blundering and stumbling headless chicken. Currently the person who is supposed to give that headless chicken direction is functionally brainless himself… If he ever did have more than a street thug’s mentality anyway. The Corn Pop thing doesn’t work with Xi, Poots, The Mad Mullahs, or much of anybody else snickering behind their hands.

        Any way this plays it’s not a good thing until we actually have enough sane people in leadership, judicial, and legislative offices to stop the ship from sinking.

        -OAB

  4. It is an established fact Trump was after Hilary Clinton. Makes me wonder if the Nuclear documents they are citing were proof of her illegal activities in the Uranium One deal which may also blow back on Obama. Trump had trouble with official Channels, on multiple occasions he stated he ordered things unclassified that officials in the Whitehouse and Archives slow rolled so it never go done.

  5. Well you all know far more about this than I do so I’ll just ask two questions The status of documents for the archive are irrelevant as the records act has no criminal enforcement provision. Thus no warrant may be granted on that basis. Is that correct? The only case law on this issue was decided in favor of the president in no uncertain terms. Thus Judicial watch was prevented from getting the tapes recorded by Bill Clinton that he hid in his sock drawer. So the overly broad warrant that allowed for any document created during the time Trump was in office to be seized is going to be very hard to justify, right?

    1. Interesting. If JEDyer has her timestamp for part 3
      https://theoptimisticconservative.wordpress.com/2022/08/19/heres-motive-on-the-mar-a-lago-raid-or-dog-paddling-outside-the-ooda-loop/#more-7006

      she can check that against Hoft’s sequel: Published August 19, 2022 at 10:53am
      https://www.thegatewaypundit.com/2022/08/crimson-rhino-raid-mar-lago/

      I could be wrong, but, hard to imagine Jim Hoft combing through the June 21 amended Trump v. Clinton, et. al. as diligently.

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