Wednesday, April 03, 2024

Of Facts And Law And Loose Cannons

Prelude:

Furthermore, even though resolution of the threshold legal question is purely a matter of law, the Court should be aware at the outset that Trump’s entire effort to rely on the PRA is not based on any facts. It is a post hoc justification that was concocted more than a year after he left the White House, and his invocation in this Court of the PRA is not grounded in any decision he actually made during his presidency to designate as personal any of the records charged in the Superseding Indictment. Accordingly, before turning to the jury instructions, the Government below provides the Court with the factual context surrounding Trump’s attempt to inject the PRA into these proceedings. Importantly, Trump has never represented to this Court that he in fact designated the classified documents as personal. He made no such claim in his motion to dismiss, in his reply, or at the hearing on March 14, 2024, despite every opportunity and every incentive to do so. As discussed below, the reason is simple: he never did so. Instead, he has attempted to fashion out of whole cloth a legal presumption that would operate untethered to any facts—without regard to his actual decisions, his actual intent, the unambiguous definition of what constitutes personal records under the PRA, or the plainly non-personal content of the highly classified documents that he retained. There is no basis in law or fact for that legal presumption, and the Court should reject Trump’s effort to invent one as a vehicle to inject the PRA into this case.

There is, according to the Special Counsel, a fact question here (those go to the jury), and a legal question (those do not go to the jury). Both arguments are presented in that paragraph, and break down this way:  

As a matter of record (fact), Trump didn't raise the question of the PRA, or make a claim under it, for two years after his Presidency ended.  Too late, in other words, to declare the designation to NARA; if it even applied.

As a matter of law (case law and statutory language), the PRA doesn't apply anyway.  IOW, Trump's argument is fashioned "out of whole cloth [trying to create] a legal presumption that would operate untethered to any facts...."  Remember, change the facts, change the outcome.  Even abstract legal arguments have to return to the facts of the case for proper application.  No facts, no application. Trump's argument, the SC goes on, is presented "without regard to his actual decisions, his actual intent, the unambiguous definition of what constitutes personal records under the PRA, or the plainly non-personal content of the highly classified documents that he retained."

So, questions of fact:  Trump's actual decisions (v. the ones he asserts in his motion).  Trump's actual intent.  Questions of law:  the definition of "personal records" under PRA (case law and statutory language); the fact "highly classified documents" can NEVER be transmogrified into "personal documents."  Which, frankly, you shouldn't have to explain to a sitting federal judge.  But I digress....

Now, in context this response is to the judge's demand for proposed jury instructions.  Jury instructions present questions of fact to the jury, based on the evidence presented in the trial, and the applicable law as ruled on by the trial judge.  I won't wander into those weeds, because the matter of "questions of fact" is what interests us here.  Jury instructions should only concern themselves with questions of fact.  One of Cannon's proposed instructions, Smith argues, is an instruction as to whether or not the PRA applies to these facts and makes the records "personal."  But that's a question of law, and doesn't belong in jury instructions.

Is Loose Cannon stupid? Incompetent?  In the tank for Trump?  Again, what's the difference in the result?

Now, as an issue of fact, did Trump ever try to make these documents his personal property?  (Set aside, arguendo, the legal issue that the PRA doesn't work that way).  As Smith points out, Trump didn't even try to raise this issue.  Wait, I'll quote Smith's filing, because this is where it gets ridiculous.

On February 7, 2022, the Washington Post reported that that, in January, NARA had “retrieved 15 boxes of documents and other items from former president Donald Trump’s Mar-a- Lago residence because the material should have been turned over to the agency when he left the White House.”4 That article quoted a statement by the Archivist noting, “‘The Presidential Records Act is critical to our democracy, in which the government is held accountable by the people.’” Id. At that point, the public reporting related only to Trump’s non-compliance with the PRA; the fact that he had retained highly classified materials did not become public for several days.

On February 8, 2022, the day after the Washington Post article was published, the president of Judicial Watch posted the following two statements on Twitter: [which are printed in the filing, but I can't get copied.  No matter, never mind; you'll get the gist.]

Immediately after posting the second Tweet, the Judicial Watch president sent to an employee in Trump’s post-presidency office a link to the Tweet and offered to discuss the issue with Trump. A few hours later, the Judicial Watch president sent the same person his analysis of the case Judicial Watch v. NARA, 845 F. Supp. 2d 288 (D.D.C. 2012). That evening, the Judicial Watch president circulated to the employee a proposed public statement for Trump’s consideration, which included language that the PRA and judicial decisions gave Trump the right to keep the documents he returned to NARA. The statement never issued.

Around this same time, the Judicial Watch president, who was not an attorney, told another Trump employee that Trump was being given bad advice, and that the records Trump possessed at Mar-a-Lago should have been characterized as personal. The second employee advised the Judicial Watch president that they disagreed with the Judicial Watch president’s analysis: in Judicial Watch, former President Clinton had made the designation of certain records personal while President, whereas Trump had not done so. The second employee further informed Trump that the Judicial Watch president was wrong and explained why. Nevertheless, on February 10, 2022, Trump released a statement claiming in part, “I have been told I was under no obligation to give the material based on various legal rulings that have been made over the years.” Before this time, the second employee had never heard this theory from Trump. No other witness recalled Trump espousing this theory until after the Judicial Watch president conveyed it to him in February 2022.

Now this is where I'd say Trump's attorneys should be telling him to pound sand, but this argument is working for Cannon.  And it simply shouldn't be.  But there are two things going on here, and I'll come back to the second one.  The first one is in the last two sentences of the last paragraph quoted:  Trump never raised this "personal documents" issue (i.e., that he had designated them as such) until February 2022.

We only have one President at a time.  Who was President in February, 2022?

So there's the fact issue with regard to the PRA.  Even if it applied, even if it worked the way Trump now says it does. he lost the power to invoke it in this way long before he tried to invoke it.  That is a question of fact, and there is no contradictory evidence in the record to counter it.

Then follows a discussion of what Trump did in May 2022, when a grand jury subpoena demanded return of the documents.  Which led to the first time the world heard of Aileen Cannon:

Trump’s attorneys took a similar approach in litigation after the execution of the search warrant at Mar-a-Lago. For example, in a September 1, 2022, hearing before this Court, Trump’s counsel repeatedly described the records at issue as presidential. See Trump v. United States, No. 9:22-cv-81294, 9/1/2022 Hearing Tr. at 8-9 (S.D. Fla.) (“What we are talking about here, in the main, are Presidential records in the hands of the 45th President of the United States at a location that was used frequently, during his term as President, to conduct official business.”); id. at 9 (“This is, as I say, Presidential records in the hands of 45th President of the United States.”); id. (“And in there are, again, Presidential records in the hands of 45th President of the United States.”). And he made those representations to the Court not only orally, but in writing. In Trump’s reply filed the day before that hearing, he quoted the definition of personal records under the PRA and distinguished presidential records from documents containing “highly personal information, such as diaries, journals, and medical records.” See Trump v. United States, No. 9:22-cv-81294, ECF No. 58 at 15 & n.4 (S.D. Fla.). The items he identified as personal were plainly not classified documents, and nowhere did he suggest that the classified documents at issue in this case had been designated personal.

I'm going to interrupt here, to point out this argument goes, still, to the question of fact:  when did Trump decide he had made these documents "personal" documents?  And the answer is:  too damned late to raise it now.  But there's also the legal question, i.e., what does the PRA say?

The implausibility of Trump’s fiction was also readily apparent to the Eleventh Circuit, which also distinguished personal items like “medical documents, correspondence related to taxes, and accounting information” from the highly classified documents at issue in this case:

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. Classified documents are marked to show they are classified, for instance, with their classification level. Classified National Security Information, Exec. Order No. 13,526, § 1.6, 3 C.F.R. 298, 301 (2009 Comp.), reprinted in 50 U.S.C. § 3161 app. at 290-301. They are “owned by, produced by or for, or . . . under the control of the United States Government.” Id. § 1.1. And they include information the “unauthorized disclosure [of which] could reasonably be expected to cause identifiable or describable damage to the national security.” Id. § 1.4.

Trump v. United States, No. 22-13005, 2022 WL 4366684, at *8 (11th Cir. Sep. 21, 2022). As the Eleventh Circuit concluded, “Plaintiff does not have a possessory interest in the documents at issue, so he does not suffer a cognizable harm if the United States reviews documents he neither owns nor has a personal interest in.”

Smith is all but shouting here:  THE 11TH CIRCUIT DECIDED THIS ISSUE 2 YEARS AGO!  OR HAVE YOU FORGOTTEN?  WELL, LET US REMIND YOU BEFORE WE GO OVER YOUR HEAD AGAIN!!!!

Cannon is stupid.  Cannon is incompetent.  Cannon is in the tank for Trump.  Whatever the explanation, the outcome is the same.

So there is no question of fact for the jury to consider, because the application of the PRA to these facts is a matter of law.  Equally, there is no question of fact relevant to the application of the PRA to these facts because there is no contradiction in the record over when Trump asserted this PRA defense.  Lastly, there is no question of law regarding the application of the PRA to these facts, because the 11th Circuit decided this issue last year.  And if Cannon wants to truly ignore the 11th Circuit on an issue she actually lost (as opposed to the issue Trump keeps saying, nonsensically, that Engoron lost at the Appellate Division which negate the judgment), the SC would like to know now, so they can ask the 11th Circuit again if they meant for their previous holding to be stare decisis and res judicata in this matter.

I have no idea if the 11th Circuit would consider these actions grounds for forced recusal.  But goddamn, if they aren't, what is? Short of making an actual cash contribution to Trump's campaign, what else does Loose Cannon have to do?

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