Thursday, April 27, 2023

Clown College Law

This is what the "Parlatore Law Group" thinks passes for a legal analysis:

 It has become abundantly clear through this investigation that the institutional practice and procedures within the White House for the handling of classified materials drastically differ from the long-established standard operating procedures employed by various agencies of the intelligence community as well as the U.S. military. As demonstrated by the discovery of documents with classification markings1 in the homes of President Trump, President Biden, and Vice President Pence, deficient document handling and storage procedures are not limited to any individual, administration, or political party. A legislative solution by Congress is required to prevent the DOJ from continuing to conduct ham-handed criminal investigations of matters that are inherently not criminal.  

That's an argument for a jury trial, where you are pleading with the jury to ignore the instructions they are about to get from the judge.  It's not what you lead with, in other words.  It's the last desperate Hail Mary to save your client from his own destructive actions. And I'm not sure how Congress can "prevent the DOJ from continuing to conduct ham-handed criminal investigations."  There's that matter of ex post facto laws, after all.  That road runs both ways.  You can't criminalize what wasn't criminal at the time of the act; but you can't decriminalize what was criminal; not without a pardon for individuals, as well. You can, for example, decriminalize marijuana possession.  But the people in jail for it at the time that law passes, are still guilty of the crime that is no longer a crime.  They have to be pardoned, or receive a commutation; or have a specific commutation written into law.   I don't think the current Congress is going to act soon enough to get Trump out of the trouble he's in; if only because he so determinatively put himself there.  A law that would save him would have to save a lot of other people, too.  Even by the terms of this letter, as we'll see, that would be completely untenable.

When President Trump left office, there was little time to prepare for the outgoing transition from the presidency. Unlike his three predecessors, each of whom had over four years to prepare for their departure upon completion of their second term, President Trump had a much shorter time to wind up his administration. 

Would that be because he refused to accept reality until January 7th?  Yeah; Trump stands accused of killing his parents, and now pleads for special consideration because he's an orphan.

Besides, what Administraiton prepares for leaving office in the first year of their second term?  And Presidents have left office after one term since the Presidential Records Act, including Carter and George H.W.  But no President stops being President until Inauguration Day, so there's always a scramble.  If Trump's staff weren't up to the task, the fault lies with Trump, not the staff.

NARA unfortunately has become overtly political and declined to provide archival assistance to President Trump’s transition team. Interestingly, in its Press Statement NARA cites every recent President after Jimmy Carter as having received the same assistance with “archival and security standards”. Yet, President Carter, the last President before President Trump to not receive archival assistance found documents with classification markings in his home, which he returned to NARA (though apparently without an accompanying DOJ criminal probe).

I highllighted the key distinction between the situation of Mr. Trump, and of Mr. Carter.  As well as the situations of Biden and Pence; there are suspicions Trump still has classified documents he has not returned despite a court order he do so.  That's all the distinction you need to start a criminal probe, as Parlatore well knows (or should).

Whether NARA’s departure from routine pack-out procedures for President Trump was intentional or a product of the compressed timeline, it did not take custody of the documents and this made necessary the transfer of boxes of documents to President Trump’s heavily secured home at Mara-a-Largo. To be clear, had NARA offered President Trump the same assistance that it had provided to all previous Presidents, he would have accepted the offer and there would have been no reason to transfer the documents to Mar-a-Lago. 

Yeah, that's what happened.  Explain, then, why Trump didn't return the documents to NARA when asked to.  Because MAL is more heavily secured than a government SCIF?  Besides, the FBI found documents in Trump's desk.  "Heavily secured"?  It is to laugh.

This letter goes on for 10 pages, and it really is, as Mark Zaid says:

an effort to "shape facts so Trump is not guilty of/responsible for obstruction."  The question is:  why are they making this argument to the House?  The courts have this matter, have had it for several months now, some of that time at the instigation of Trump.  There is nothing the House can do about this, even if they try to.  So what's the endgame here? Yeah, this has the flop sweat of absolute desperation all over it. And I think there's a reason Zaid, a skilled lawyer who works in the area of national security law and litigation, doesn't even bother with the letter's conclusion:

The solution to these issues is not a misguided, politically infected, and severely botched criminal investigation, but rather a legislative solution. DOJ should be ordered to stand down, and the intelligence community should instead conduct an appropriate investigation and provide a full report to this Committee, as well as your counterparts in the Senate. Armed with the appropriate knowledge, we respectfully suggest that your Committee hold hearings and make legislative changes to: 

1. Correct classified document handling procedures in the White House; 

2. Standardize document handling and storage procedures for Presidents and Vice Presidents when they leave office; and 

3. Formalize procedures for investigations into the mishandling or spillage of classified material, to prevent future situations where DOJ is inappropriately assigned to conduct an investigation. 

Because all of these "solutions" already exist in the law.  The problem is not the vaguenss of the law; the problem is Trump's disobedience, indeed indifference, to the law.  Point 1 is entirely Trump's responsibility; but he signally failed in it and now, being called to account for his actions, wants to displace responsiblity on, not other persons, but the law itself.  It's always a desperate move when you blame an abstraction for your problems.

Point 2 already exists, and has since at least the presidency of Jimmy Carter.  Again, Trump just didn't want to follow the procedures because they stood in the way of him taking what he considered to be his property.  Which, by the way, included several gifts given to the Presidency while he was in office, which have been found (and some not yet found) in his properties.  I'm sure that's the fault of handling and storage procedures, too.

Point 3 is exactly what Trump is going through now, after 18 months of effort by NARA, without involving the DOJ, to get documents back Trump absconded with.  We know Trump told staff to move documents around at MAL, and refused to return documents to NARA, which refusal culminated in the search warrant investiation of MAL.

This letter is an absolute joke.  Any attempt to act on it by the House will result in the same clown show as the Manhattan hearing Gym Jordan conducted which had as much effect on Alvin Bragg as a fly landing on window of the courthouse building the day of Trump's arraignment.

And for pity's sake, PROOFREAD YOUR LETTER!
(Yeah, I know; my typos are the stuff of nightmares. But this is why I just type "MAL" anymore. Still, I'm not signing a letter to multiple public officials, am I?)
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