Orange Meltdown, Con't

The Biden administration says it is conducting a full damage assessment of the nation's intelligence services from Donald Trump's criminal mishandling of classified documents at his non-secure Florida resort, including the possible exposure of identities of sources, spies, and agents.

Director of National Intelligence Avril Haines has sent a letter to the House Intelligence and House Oversight committee chairs, saying the intelligence community is conducting a damage assessment of the documents taken from former President Donald Trump's home in Mar-a-Lago, according to a letter obtained by CNN. 

"The Department of Justice (DOJ) and the Office of the Director of National Intelligence (ODNI) are working together to facilitate a classification review of relevant materials, including those recovered during the search," Haines wrote in her letter to House Intelligence Chair Adam Schiff and House Oversight Chair Carolyn Maloney. 

Several members of Congress have called for an intelligence damage assessment of the documents. 

Politico was first to report on the letter. 

Haines also sent a letter to the Senate Intelligence Committee saying her office would lead an assessment about the risks to national security, according to two sources familiar with the matter. 

In addition, the Justice Department sent a letter to the Senate panel saying that it would be sharing materials with the intelligence agencies while adhering to its longstanding tradition of not disclosing any non-public information during an active investigation, the sources said. 

Maloney and Schiff said in a joint statement that they were "pleased" that Haines has launched the intelligence damage assessment of classified documents found at Trump's home in Florida. 

The two chairs, who had called for the assessment after the FBI searched Trump's home earlier this month, also said that the assessment must move "swiftly." 

On Friday, Senate Intelligence Chairman Mark Warner, a Virginia Democrat, said in a statement following the release of the redacted affidavit that his panel had made a bipartisan request for "a damage assessment of any national security threat posed by the mishandling of this information."

 

Trump's team has, in the meanwhile, found a friendly Trump-appointed judge to buy their argument that the documents taken from Mar-a-Lago are protected by executive privilege and must be examined by a "special master" to determine if they must be returned to Trump.

A federal judge in Florida gave notice on Saturday of her “preliminary intent” to appoint an independent arbiter, known as a special master, to conduct a review of the highly sensitive documents that were seized by the F.B.I. this month during a search of Mar-a-Lago, former President Donald J. Trump’s club and residence in Palm Beach.

In an unusual action that fell short of a formal order, the judge, Aileen M. Cannon of the Federal District Court for the Southern District of Florida, signaled that she was inclined to agree with the former president and his lawyers that a special master should be appointed to review the seized documents.

But Judge Cannon, who was appointed by Mr. Trump in 2020, set a hearing for arguments in the matter for Thursday in the federal courthouse in West Palm Beach — not the one in Fort Pierce, Fla., where she typically works.

On Friday night, only hours after a redacted version of the affidavit used to obtain the warrant for the search of Mar-a-Lago was released, Mr. Trump’s lawyers filed court papers to Judge Cannon reiterating their request for a special master to weed out documents taken in the search that could be protected by executive privilege.

Mr. Trump’s lawyers had initially asked Judge Cannon on Monday to appoint a special master, but their filing was so confusing and full of bluster that the judge requested clarifications on several basic legal questions. The notice by Judge Cannon on Saturday was seen as something of a victory in Mr. Trump’s circle.

 

Here's the hysterically obvious problem with this "executive privilege" argument: Trump is not President. Legally, this should be tossed into the nearest chipper/shredder. It's the current president who gets to decide what executive privilege means here, and the Biden administration has the final say. Trump doesn't get to determine what executive privilege is any more than you or I do.

From a legal and constitutional standpoint NARA was not only justified in denying Trump’s assertion of executive privilege, it really had no choice in the matter.

To understand why this is so, it is helpful to break down the question into three questions:

(1) Does a former president ever have the right to successfully assert executive privilege to prevent access to presidential records by the incumbent president or executive agencies acting under the incumbent’s authority?;

(2) If such a right exists, could it be successfully exercised under the current circumstances?; and

(3) Who decides the first two issues?

Executive Privilege by a Former President

First, the PRA makes clear that nothing in its provisions are to be interpreted as expanding or diminishing the former president’s constitutional rights. Indeed, both the statutory language and legislative history make clear that Congress has been extremely skeptical of the notion that a former president can successfully assert executive privilege under any circumstances without the support of the incumbent president. While the executive branch has taken a different view, that argument has never extended so far as to suggest that the former president can successfully assert the privilege in opposition to the incumbent, much less that he can do so when the incumbent himself is seeking access to presidential records for purposes of carrying out the constitutional functions of the executive branch.

For example, when in the 1980s the Office of Legal Counsel issued a much criticized opinion (later rejected by the D.C. Circuit) that an incumbent president should ordinarily defer to a former president’s assertion of executive privilege with regard to the latter’s presidential records, it nonetheless explained that “this principle must yield when it conflicts with the discharge of the incumbent’s constitutional responsibilities;” thus, “if the incumbent President believes that the discharge of his constitutional duties (e.g., investigation and prosecution of alleged crimes) demands the disclosure of documents claimed by the former President to be privileged, it may be necessary for him to oppose a former President’s claim.” (emphasis added). Similarly, the author of the opinion, Assistant Attorney General Charles Cooper, when summoned to defend it before Congress, explained that “an incumbent President need not respect a former President’s claim of privilege if the incumbent feels that it would interfere with his ability to execute his legal and constitutional responsibilities as he, alone, understands and perceives them.”

Whether a former president should ever have the unilateral power to assert executive privilege over the objection of the incumbent remains an unsettled issue, as the Supreme Court recently recognized in Trump v. Thompson. As I have pointed out elsewhere, this notion is in considerable tension with OLC’s general approach to executive privilege. At least one member of the Supreme Court (Justice Kavanaugh) nevertheless believes that “[a] former President must be able to successfully invoke the Presidential communications privilege for communications that occurred during his Presidency, even if the current President does not support the privilege claim.” In Thompson, however, Justice Kavanaugh was writing in the context of a congressional request (from the January 6th Committee) to access presidential records; it is by no means clear that he would maintain the same view where the incumbent president himself was seeking access to the records for purposes of carrying out the executive’s legal and constitutional functions.

Indeed, Kavanaugh, during his tenure in the White House counsel office, famously defended a controversial executive order on presidential records issued by President George W. Bush. That order made it extremely difficult for the public, Congress or the courts to access presidential records over the objection of a former president. However, the order explicitly provided that it did not address access by the incumbent president to those records, a fact somewhat bitterly noted by congressional critics at the time.

In short, the notion that a former president can block his successor from accessing presidential records that the incumbent believes he needs for purposes of carrying out executive functions would be the most extreme manifestation of a doubtful legal theory, and one that has no support in any legal authority to date.

 

But where Trump is winning here is the fact that he's successfully slowing the investigation into his mishandling of the documents. It could take "months" for the special master to complete their work, you see, and surely no indictments can be "legally" issued while this is going on. 

It's a solid stalling tactic that could buy Trump quite some time to both get the search warrant out of the news ahead of campaign season going into full swing next month, and to come up with more tactics to keep the feds off his case.

The problem for Trump is that the case against him here is pretty open and shut.

We'll see how this goes, but it's going to go badly for Trump.