Stasi Raid Mar-a-Lago

[Mountain Man]

Well, well, well...

“Hoffman Estates” is a previously abandoned Chicago area Sears furniture warehouse. The Obama Foundation leased, then re-upped the lease, to use the facility to store all the paper documents from the Obama administration {Location Link}.

The Obama administration told the National Archives and Records Administration (NARA) they were going to upload the documents into a digital form for use in the Obama library. The paper documents were, still are, held at the Hoffman Estates warehouse while this digitization process took place. It should be noted, the Obama Foundation has never digitized the records, hence they renewed the warehouse lease.

Contrast against the DOJ-NSD legal position about classified records held in the secure facility of Mar-a-Lago, a 2018 letter {Obama.org pdf here} from the Obama Foundation to the NARA is an example of the two-tiered selective justice system. Within the 2018 letter the Obama team admit to storing both “classified and unclassified” documents at the warehouse...

[...]

Obviously, there were no raids on Hoffman Estates from the FBI to secure the classified documents. Nor did the DOJ National Security Division trigger a criminal investigation of President Obama for holding documents, particularly classified documents, against the interests of the NARA while they “digitized them;” a process, which again should be noted, never even began.

The intent of sharing this information is just to highlight the political dynamic within the NARA, DOJ and FBI as it pertains to selective enforcement of presidential records.

https://theconservativetreehouse.com...ure-warehouse/

[Stoic]

No, he is there to only give back attorney client privilege documents. The rest go back to the DOJ to sort through. I doubt Trump could claim a classified document was privileged since it would have had to be created and rated by the government at some point to be classified and that would be before Trump had it. A privileged document would be a document with private information shared between Trump and his Attorney, such as letters or emails discussing their strategy and such. That wouldn't be classified. The whole what is and isn't classified shouldn't have anything to do with that as far as I can tell. Now they might be wanting to use some documents in their case that they claim is not classified but the DOJ claims is, but that is for the courts to decide later.

The DOJ has argued that the documents marked classified are indeed classified, and thus obviously not subject to attorney-client privilege. The judge's response to that was:

In isolating the described documents from the larger set of seized materials, the Motion effectively asks the Court to accept the following compound premises, neither of which the Court is prepared to adopt hastily without further review by a Special Master. The first premise underlying the Motion is that all of the approximately 100 documents isolated by the Government (and “papers physically attached to them”) are classified government records, and that Plaintiff therefore could not possibly have a possessory interest in any of them. The second is that Plaintiff has no plausible claim of privilege as to any of these documents [ECF No. 69 p. 7 (categorically asserting that the “classified records at issue in this Motion . . . do not include personal records or potentially privileged communications”)]. The Court does not find it appropriate to accept the Government’s conclusions on these important and disputed issues without further review by a neutral third party in an expedited and orderly fashion.

source

IOW, the judge is relying upon the special master to help determine whether the documents in question are actually classified.

(Also, I take back my claim that the special master is supposed to determine which documents should go back to Trump. That's to be decided by the judge, based on information gathered by the special master.)

[Stoic]

Well, well, well...

“Hoffman Estates” is a previously abandoned Chicago area Sears furniture warehouse. The Obama Foundation leased, then re-upped the lease, to use the facility to store all the paper documents from the Obama administration {Location Link}.

The Obama administration told the National Archives and Records Administration (NARA) they were going to upload the documents into a digital form for use in the Obama library. The paper documents were, still are, held at the Hoffman Estates warehouse while this digitization process took place. It should be noted, the Obama Foundation has never digitized the records, hence they renewed the warehouse lease.

Contrast against the DOJ-NSD legal position about classified records held in the secure facility of Mar-a-Lago, a 2018 letter {Obama.org pdf here} from the Obama Foundation to the NARA is an example of the two-tiered selective justice system. Within the 2018 letter the Obama team admit to storing both “classified and unclassified” documents at the warehouse...

[...]

Obviously, there were no raids on Hoffman Estates from the FBI to secure the classified documents. Nor did the DOJ National Security Division trigger a criminal investigation of President Obama for holding documents, particularly classified documents, against the interests of the NARA while they “digitized them;” a process, which again should be noted, never even began.

The intent of sharing this information is just to highlight the political dynamic within the NARA, DOJ and FBI as it pertains to selective enforcement of presidential records.

https://theconservativetreehouse.com...ure-warehouse/

Any information coming from The Conservative Treehouse should be taken with a YUGE grain of salt. (But we all knew that, didn't we?)

The National Archives said it “assumed exclusive legal and physical custody of Obama presidential records when President Barack Obama left office in 2017.”

The agency said about 30 million pages of unclassified records went to a National Archives facility in the Chicago area. Classified Obama presidential records are in a facility in the Washington, D.C., area.

source

[Mountain Man]

Any information coming from The Conservative Treehouse should be taken with a YUGE grain of salt. (But we all knew that, didn't we?)

The National Archives said it “assumed exclusive legal and physical custody of Obama presidential records when President Barack Obama left office in 2017.”

The agency said about 30 million pages of unclassified records went to a National Archives facility in the Chicago area. Classified Obama presidential records are in a facility in the Washington, D.C., area.

source

The most obvious answer is that the National Archive's statement is false. Whether it is willful deception or an inadvertent misstatement of the facts, I cannot say.

Consider: if the National Archives already had possession of the documents in 2017, then how to explain a 2018 letter that says, in part-

"The Obama Foundation agrees [...] to support the move of classified and unclassified Obama Presidential records and artifacts from Hoffman Estates [a facility controlled by the Obama Foundation] to NARA-controlled facilities that conform to the agency's archival storage".

https://www.obama.org/wp-content/upl...F-NARA-LOI.pdf

I would encourage you not to strain yourself trying to invent a rationalization and simply accept the plain facts.

[Stoic]

The most obvious answer is that the National Archive's statement is false. Whether it is willful deception or an inadvertent misstatement of the facts, I cannot say.

Consider: if the National Archives already had possession of the documents in 2017, then how to explain a 2018 letter that says, in part-

"The Obama Foundation agrees [...] to support the move of classified and unclassified Obama Presidential records and artifacts from Hoffman Estates [a facility controlled by the Obama Foundation] to NARA-controlled facilities that conform to the agency's archival storage".

https://www.obama.org/wp-content/upl...F-NARA-LOI.pdf

I would encourage you not to strain yourself trying to invent a rationalization and simply accept the plain facts.

The document that you believe can't be wrong is a Letter of Intent, and there is no reason that it couldn't contain mistakes.

It seems to me that the Memo of Understanding, with a more recent date, is more credible.

[Juvenal]

Appeals court sides with Justice Department in Mar-a-Lago case
The federal appeals court says the Justice Department can review classified documents for ongoing criminal investigation
.

An appeals court sided with the Justice Department in a legal fight over classified documents seized in a court-authorized search of former president Donald Trump’s Mar-a-Lago home, ruling Wednesday that the FBI may use the documents in its ongoing criminal investigation.

The ruling by a three-judge panel of the appeals court marks a victory, at least temporarily, for the Justice Department in its legal battle with Trump over access to the evidence seized in a high-stakes national security investigation to determine if the former president or his advisers mishandled national security secrets or hid or destroyed government records.

In the ruling, the U.S. Court of Appeals for the 11th Circuit in Atlanta found fault with Trump’s rationale that the classified documents in particular might be his property, rather than the government’s. The appeals court also disagreed with the rationale used by U.S. District Court Judge Aileen M. Cannon.

“For our part, we cannot discern why [Trump] would have an individual interest in or need for any of the one-hundred documents with classification markings,” the court wrote, noting that the stay is a temporary decision and should not be considered a final decision on the merits of the case.

And so it goes.

As above, this is a response to the motion requesting a stay pending appeal, and not the appeal in itself.

[Juvenal]

Eleventh Circuit Grants Justice Department's Motion for Partial Stay
.

On Wednesday evening, the Eleventh Circuit Court of Appeals issued an opinion granting the Justice Department's motion for a partial stay. The department's motion, which was filed only last week, had asked the court to stay that portion of Judge Aileen Cannon's order that enjoined its review and use of approximately 100 classified documents.

In granting the stay, the court first held that the government was likely to succeed on the merits of its claim that Judge Cannon had erred in exercising equitable jurisdiction to enjoin the department's review and use of the marked classified documents and to require their production for the Special Master's review. To reach this conclusion, the court applied the four factors set forth in Smith v. Richey, finding that none favored jurisdiction.

Second, the court concluded that denying the stay would result in irreparable harm because the national-security review led by the Director of National Intelligence, which Judge Cannon's order allowed to proceed, is "inextricably intertwined with [the government's] criminal investigation." The court also agreed with the government's contention that allowing the special master and former President Donald Trump's counsel to review the marked classified documents would separately constitute irreparable harm.

Third, the court held that Trump had failed to establish that he would suffer a substantial injury as a result of the stay. The court found that Trump "does not have a possessory interest" in the marked classified documents and that these documents likely do not contain privileged information such that the government's use of them would harm him. The court further found "unpersuasive" Trump's claim that he would suffer irreparable harm as a result of the criminal investigation against him.

Finally, the court held that because it is "self-evident" that the public has a strong interest in insuring secure storage of classified materials, public interest favored a stay.

You can read the 11th Circuit's opinion here or below:

That's Lawfare's quick take on the Appellate order granting the stay. I had just finished reading it myself using the copy provided by the New York Times, but decided to look for a copy that's not behind a paywall, and this article came up in my search.

The first half of the opinion linked above rehashes the history of the case. The discussion begins on p. 15 of the 29-page opinion.

The opinion of the 11th circuit was authored by a banc of three judges, two of whom are Trump-appointees. In judicial language, the opinion simply eviscerates Cannon's argument for denying the stay on the the use and delivery to the special master of "documents marked classified", necessitating the appeal. In her order denying the stay, because she couldn't rely on rule 41(g), she relied on equitable jurisdiction, which in turn relies on the Richey factors.

The 11th Circuit writes:
.

The United States argues that the district court likely erred in exercising its jurisdiction to enjoin the United States’s use of the classified records in its criminal investigation and to require the United States to submit the marked classified documents to a special master for review. We agree. Our binding precedent states that when a person seeks return of seized property in pre-indictment cases, those actions “are governed by equitable principles, whether viewed as based on [Federal Rule of Criminal Procedure] 41[(g)] or on the general equitable jurisdiction of the federal courts.” Richey v. Smith, 515 F.2d 1239, 1243 (5th Cir. 1975).

Understand that Richey spells out four factors used by Cannon in determining her equitable jurisdiction, and she muffed it coming off the starting line. The first factor is necessary to proceed, and it didn't pass the first factor. Not only did it fail to pass the first factor, she acknowledged that it didn't pass the first factor, but nevertheless proceeded to look for a rationale amongst the following three.
.

We begin, as the district court did, with “callous disregard,” which is the “foremost consideration” in determining whether a court should exercise its equitable jurisdiction. United States v. Chapman, 559 F.2d 402, 406 (5th Cir. 1977). Indeed, our precedent emphasizes the “indispensability of an accurate allegation of callous disregard.” Id. (alteration accepted and quotation omitted). Here, the district court concluded that Plaintiff did not show that the United States acted in callous disregard of his constitutional rights. Doc. No. 64 at 9. No party contests the district court’s finding in this regard. The absence of this “indispensab[le]” factor in the Richey analysis is reason enough to conclude that the district court abused its discretion in exercising equitable jurisdiction here. Chapman, 559 F.2d at 406. But for the sake of completeness, we consider the remaining factors.

For the sake of completeness, the 11th Circuit found that none of the remaining Richey factors were satisfied.
.

In sum, none of the Richey factors favor exercising equitable jurisdiction over this case. Consequently, the United States is substantially likely to succeed in showing that the district court abused its discretion in exercising jurisdiction over Plaintiff’s motion as it concerns the classified documents.

So that's the classified documents swept off of Dearie's plate, with no real likelihood they'll find their way back to him again.

[firstfloor]

I see that Fed Soc weirdo Aileen Cannon gets her come-uppance.

[Mountain Man]

The document that you believe can't be wrong is a Letter of Intent, and there is no reason that it couldn't contain mistakes.

It seems to me that the Memo of Understanding, with a more recent date, is more credible.

I see nothing in the document you linked that would contradict the 2018 letter from the Obama Foundation indicating that they had yet to relinquish all classified documents to the National Archives.

[Mountain Man]

So that's the classified documents swept off of Dearie's plate, with no real likelihood they'll find their way back to him again.

We'll have to wait and see what the Supreme Court says, because that's where this case is ultimately headed. The key question is whether or not a president's order to declassify can be refused or overturned.

[Sparko]

The DOJ has argued that the documents marked classified are indeed classified, and thus obviously not subject to attorney-client privilege. The judge's response to that was:

In isolating the described documents from the larger set of seized materials, the Motion effectively asks the Court to accept the following compound premises, neither of which the Court is prepared to adopt hastily without further review by a Special Master. The first premise underlying the Motion is that all of the approximately 100 documents isolated by the Government (and “papers physically attached to them”) are classified government records, and that Plaintiff therefore could not possibly have a possessory interest in any of them. The second is that Plaintiff has no plausible claim of privilege as to any of these documents [ECF No. 69 p. 7 (categorically asserting that the “classified records at issue in this Motion . . . do not include personal records or potentially privileged communications”)]. The Court does not find it appropriate to accept the Government’s conclusions on these important and disputed issues without further review by a neutral third party in an expedited and orderly fashion.

source

IOW, the judge is relying upon the special master to help determine whether the documents in question are actually classified.

(Also, I take back my claim that the special master is supposed to determine which documents should go back to Trump. That's to be decided by the judge, based on information gathered by the special master.)

I believe the problem arose when they were allowed to take all documents in the vicinity of any classified documents. They were not being discriminatory in only taking classified documents but were taking anything even near them. Trump and his Attorneys claim they took some privileged documents that were in the vicinity and so requested the special master to review the documents taken.

[Juvenal]

We'll have to wait and see what the Supreme Court says, because that's where this case is ultimately headed. The key question is whether or not a president's order to declassify can be refused or overturned.

That's irrelevant here. And not just because Trump's team refuses to claim Trump declassified the documents. But because Cannon lacked any jurisdiction in this case.
.

The United States argues that the district court likely erred in exercising its jurisdiction [...] We agree.

The ruling is restricted to the actual motion, but the "equitable jurisdiction" allowing her to insert herself into the case in any fashion depends on the first Richey factor, "callous disregard."
.

Here, the district court concluded that Plaintiff did not show that the United States acted in callous disregard of his constitutional rights.

That's Cannon herself stipulating that Trump's team failed to show cause for her to intervene. The 11th Circuit's response signals that Cannon's order appointing a special master is similarly likely to fall if appealed. It says that all of her orders on this case are likely to fall if appealed. Because she did not have equitable jurisdiction.

[Juvenal]

I see nothing in the document you linked that would contradict the 2018 letter from the Obama Foundation indicating that they had yet to relinquish all classified documents to the National Archives.

The letter doesn't claim the Foundation owned or controlled them, naturally enough, because NARA owned and controlled them. The Foundation was paying to store them. The letter says the Foundation would pay to transport them to another facility where NARA would continue to own and control them.

On another point, it might be interesting to note there are actually 1.5 billion records destined for digital access, all but 30 million of which were "born" digital. When the process is complete, this will be the most accessible presidential library in history.
.

All of the official presidential records of the Obama administration are owned and managed by NARA. This includes 1.5 billion pages of “born digital” records—emails, PDFs, digital photos, tweets—that have no paper equivalents—along with roughly 30 million pages of paper documents and 30,000 physical artifacts. Together, these “born-digital” and digitized records and artifacts will make up NARA’s Obama Presidential Library.

NARA will maintain ownership and management of these records and make them available under the same standards and practices under which they have always administered records, in accordance with the Presidential Records Act.

What's more interesting to me, though no one has suggested it yet, is that they're developing standards and procedures for digitization that could easily be applied to all of his predecessors' presidential libraries.

[Juvenal]

I believe the problem arose when they were allowed to take all documents in the vicinity of any classified documents. They were not being discriminatory in only taking classified documents but were taking anything even near them. Trump and his Attorneys claim they took some privileged documents that were in the vicinity and so requested the special master to review the documents taken.

To date, the only claim there was any problem arises from Cannon's assertion of equitable jurisdiction over Gonzalez' warrant.
.

Here, the district court concluded that Plaintiff did not show that the United States acted in callous disregard of his constitutional rights.

The problem being, that she needed that to be true in order to claim equitable jurisdiction. And with that, she ran herself off the edge of the cliff and is now stuck looking down at the desert below, looking coyote foolish.

[Mountain Man]

The letter doesn't claim the Foundation owned or controlled them, naturally enough, because NARA owned and controlled them. The Foundation was paying to store them. The letter says the Foundation would pay to transport them to another facility where NARA would continue to own and control them.

On another point, it might be interesting to note there are actually 1.5 billion records destined for digital access, all but 30 million of which were "born" digital. When the process is complete, this will be the most accessible presidential library in history.
.

All of the official presidential records of the Obama administration are owned and managed by NARA. This includes 1.5 billion pages of “born digital” records—emails, PDFs, digital photos, tweets—that have no paper equivalents—along with roughly 30 million pages of paper documents and 30,000 physical artifacts. Together, these “born-digital” and digitized records and artifacts will make up NARA’s Obama Presidential Library.

NARA will maintain ownership and management of these records and make them available under the same standards and practices under which they have always administered records, in accordance with the Presidential Records Act.

What's more interesting to me, though no one has suggested it yet, is that they're developing standards and procedures for digitization that could easily be applied to all of his predecessors' presidential libraries.

Hoffman Estates is a facility leased and controlled by the Obama Foundation. The 2018 letter states the Foundation's intent to transfer classified and unclassified documents to a facility controlled by the National Archives that meets their criteria for document storage, the obvious implication being that the Hoffman Estates was not such a facility.

Look, I understand that your and Stoic's knee jerk reaction is to jump to Obama's defense, but there's nothing to be alarmed about here. This is all a normal part of the negotiations between a former president and the National Archives. It's not a big deal. What is not normal is for the DOJ and FBI to use a mundane dispute between a former president and the National Archives as a pretext to raid that former president's private residence and run off with anything they can get their hands on.