News broke that Trump’s legal team filed a motion to have a special master review all documents taken by the FBI to search for any privileged material. At first blush (And my initial impression) it didn’t present as totally unreasonable. If the files contain material that is privileged “attorney-client” memos or purely personal material, it would help all parties to ensure that any possible prosecution or charges concerned “only” materials that Trump could not legally possess. Except, on further examination, one learns that the Trump team wanted to go far beyond attorney-client or personal documents and wanted a special master to examine documents for possible executive privileged material. In other words, they’re asserting executive privilege against the executive branch (DOJ).
That’s not a thing.
Trump apologist and friend John Solomon inexplicably released an incredibly damning letter yesterday, one written by the National Archives to Trump’s legal representatives in May of this year, stating that they already had collected Top-Secret/SCI, SAP documents, and they knew he had more. They had yet to call the FBI (amazingly) and had given him one last chance. Trump’s team asked for another extension and time for Trump to review the documents for “executive privilege personally.” The National Archives patiently – again – explained that there was no conceivable claim of executive privilege, and they were now turning the matter over to the FBI. It makes Trump look guilty and intent on keeping the documents without regard for the law, probably believing the FBI would ever actually raid the place.
Thus, Trump’s motion for a special master to review documents for executive privileged material is actually absurd, and he will lose this motion. It is yet another attempt to buy time and play the role of the victim. CNN analyst Rebecca Roiphe, a former NY D.A., agrees and commented:
They are asserting executive privilege against the executive branch. I mean, the Department of Justice is part of the executive branch. That’s bizarre to start with. Obviously, these documents belong in the National Archives. This is exactly why they are to be held by the government itself, not by somebody who is a former president or anybody else.
The former president doesn’t understand that certain people in certain roles just don’t respond in the same way he does,” she said. “Merrick Garland just rolls his eyes at that. He’s doing his job, following facts, thinking how they apply to the law. This idea that some people might be feeling certain ways or that Trump knows certain people, that isn’t going to actually affect him in any way. He’s reacting just as we’re reacting, which is to think, ‘This is bizarre, why is he doing that, if anything it makes him look guilty.’
Correct.
Clearly, it was naive to think that Trump only sought to retrieve possible documents that he could lawfully keep, the loose memo that may be stuck in, and among the vast majority of records that he clearly cannot keep. No. Trump believes he has the right to assert ownership (Call it what it is) of certain Top-Secret SCI-SAP documents generated in his administration “just because they’re mine.” And his assertion of “executive privilege” makes him look guilty. He is admitting these are executive documents.
If one has time, click on the letter attached above, and here, the one written by the Director of the National Archives to Trump’s lawyers and inexplicably released by John Solomon. It lays out a lot of background that helps one to understand how these issues were settled long ago. Trump was given opportunity after opportunity even though nothing in the law said that the National Archives had to give Trump all these chances. As one reads the law, the moment that the National Archives established that Trump had these documents in his possession, it could have called the FBI immediately (It is possible the FBI already knew. Trump has been a walking intelligence risk even in office), and the FBI could have started building probable cause immediately without working with Trump at all. Instead, they went out of their way to accommodate Trump and not force a showdown. It looks terrible.
[embedded content]
@JasonMiciak believes a day without learning is a day not lived. He is a political writer, features writer, author, and attorney. He is a Canadian-born dual citizen who spent his teen and college years in the Pacific Northwest and has since lived in seven states. He now enjoys life as a single dad of a young girl, writing from the beaches of the Gulf Coast. He loves crafting his flower pots, cooking, and currently studies philosophy of science, religion, and non-math principles behind quantum mechanics and cosmology. Please feel free to contact for speaking engagements or any concerns.