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Donald Trump's legal woes mount without the protection of the White House


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  • Chamberlain

Stark repudiation by federal judges he appointed. Far-reaching fraud allegations by New York's attorney general. It's been a week of widening legal troubles for Donald Trump, laying bare the challenges piling up as the former president operates without the protections afforded by the White House.

The bravado that served him well in the political arena is less handy in a legal realm dominated by verifiable evidence, where judges this week have looked askance at his claims and where a fraud investigation that took root when Trump was still president burst into public view in an allegation-filled 222-page state lawsuit.

In politics, “you can say what you want and if people like it, it works. In a legal realm, it's different,” said Chris Edelson, a presidential powers scholar and American University government professor. “It's an arena where there are tangible consequences for missteps, misdeeds, false statements in a way that doesn't apply in politics.”

That distinction between politics and law was evident in a single 30-hour period this week.

Trump insisted on Fox News in an interview that aired Wednesday that the highly classified government records he had at Mar-a-Lago actually had been declassified, that a president has the power to declassify information “even by thinking about it.”

A day earlier, however, an independent arbiter his own lawyers had recommended appeared skeptical when the Trump team declined to present any information to support his claims that the documents had been declassified. The special master, Raymond Dearie, a veteran federal judge, said Trump's team was trying to “have its cake and eat it,” too, and that, absent information to back up the claims, he was inclined to regard the records the way the government does: Classified.

On Wednesday morning, Letitia James, the New York State attorney general, accused Trump in a lawsuit of padding his net worth by billions of dollars and habitually misleading banks about the value of prized assets. The lawsuit, the culmination of a three-year investigation that began when he was president, also names as defendants three of his adult children and seeks to bar them from ever again running a company in the state. Trump has denied any wrongdoing.

Hours later, three judges on the U.S. Court of Appeals for the 11th Circuit - two of them Trump appointees - handed him a startling loss in the Mar-a-Lago investigation.

The court overwhelmingly rejected arguments that he was entitled to have the special master do an independent review of the roughly 100 classified documents taken during last month's FBI search.

That ruling opened the way for the Justice Department to resume its use of the classified records in its probe. It lifted a hold placed by a lower court judge, Aileen Cannon, a Trump appointee whose rulings in the Mar-a-Lago matter had to date been the sole bright spot for the former president. On Thursday, she responded by striking the parts of her order that had required the Justice Department to give Dearie, and Trump's lawyers, access to the classified records.

Between Dearie's position, and the appeals court ruling, "I think that basically there may be a developing consensus, if not an already developed consensus, that the government has the stronger position in a lot of these issues and a lot of these controversies," said Richard Serafini, a Florida criminal defense lawyer and former Justice Department prosecutor.

To be sure, Trump is hardly a stranger to courtroom dramas, having been deposed in numerous lawsuits throughout his decades-long business career, and he has demonstrated a remarkable capacity to survive situations that seemed dire.

His lawyers did not immediately respond Thursday to a request seeking comment.


In the White House, Trump had faced a perilous investigation into whether he had obstructed a Justice Department probe of possible collusion between Russia and his 2016 campaign. Ultimately, he was protected at least in part by the power of the presidency, with special counsel Robert Mueller citing longstanding department policy prohibiting the indictment of a sitting president.

He was twice impeached by a Democratic-led House of Representatives - once over a phone call with Ukraine's leader, Volodymyr Zelenskyy, the second time over the Jan. 6, 2021, riot at the Capitol - but was acquitted by the Senate on both occasions thanks to political support from fellow Republicans.

It remains unclear if any of the current investigations - the Mar-a-Lago one or probes related to Jan. 6 or Georgia election interference - will produce criminal charges. And the New York lawsuit is a civil matter.

But there's no question Trump no longer enjoys the legal shield of the presidency, even though he has repeatedly leaned on an expansive view of executive power to defend his retention of records the government says are not his, no matter their classification.

Notably, the Justice Department and the federal appeals court have paid little heed to his assertions that the records had been declassified. For all his claims on TV and social media, both have noted that Trump has presented no formal information to support the idea that he took any steps at all to declassify the records.

The appeals court called the declassification question a “red herring” because even declassifying a record would not change its content or transform it from a government document into a personal one. And the statutes the Justice Department cites as the basis of its investigation do not explicitly mention classified information.

Trump's lawyers also have stopped short of saying in court, or in legal briefs, that the records were declassified. They told Dearie they shouldn't be forced to disclose their stance on that issue now because it could be part of their defense in the event of an indictment.

Even some legal experts who have otherwise sided with Trump in his legal fights are dubious of his assertions.

Jonathan Turley, a George Washington University law professor who testified as a Republican witness in the first impeachment proceedings in 2019, said he was struck by the “lack of a coherent and consistent position from the former president on the classified documents.”

“It's not clear,” he added, “what Jedi-like lawyers said that you could declassify things with a thought, but the courts are unlikely to embrace that claim.”


This is awesome! I love it! Somebody pass the popcorn . . .

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  • Chamberlain

Trump's path to stall documents probe narrows after legal setbacks

Donald Trump's bid to impede a criminal investigation into his possession of documents taken from the White House has begun to unravel, legal experts said, after courtroom setbacks including doubts expressed by judges about the former U.S. president's claim that he declassified records seized at his Florida home.

Trump has experienced disappointments on multiple fronts this week as his lawyers try to slow down the Justice Department investigation that kicked into high gear with an Aug. 8 court-approved search of his Mar-a-Lago residence in which FBI agents found 11,000 documents including about 100 marked as classified.

A three-judge panel of the Atlanta-based 11th U.S. Circuit Court of Appeals on Wednesday ruled that federal investigators could immediately resume examining the classified records, reversing Florida-based U.S. District Judge Aileen Cannon's decision to wall off these documents while an independent arbiter assesses whether any should be withheld as privileged.

"Cannon's ruling is so far out of the norm, and the 11th Circuit did such a good job of thoroughly dismantling her opinion," said Jonathan Shaub, a former attorney in the Justice Department's Office of Legal Counsel who now teaches law at the University of Kentucky.

Trump may appeal the 11th Circuit's ruling to the Supreme Court, but experts doubted the justices would agree to hear it. The 11th Circuit's panel included two judges appointed by Trump.

At issue in the investigation - one of several legal woes entangling Trump as he considers another run for the presidency in 2024 - is whether he broke federal laws preventing the destruction or concealment of government records and the unauthorized possession of national defense information. The Justice Department is also looking into whether Trump unlawfully tried to obstruct the investigation.

Trump has not been charged with any crime and the mere existence of an investigation does not mean he will be.

As part of Trump's counterattack against the investigation, he has made public claims that he personally declassified the seized records.

"If you're the president of the United States, you can declassify just by saying it's declassified, even by thinking it," Trump told Fox News on Wednesday. "You're sending it to Mar-a-Lago or wherever you're sending it, and there doesn't have to be a process."

Trump's lawyers, however, have stopped short of stating in court that he declassified the documents, though they have not conceded that they are classified.

The 11th Circuit called Trump's declassification argument a "red herring." The three statutes underpinning the FBI's search warrant at Mar-a-Lago make it a crime to mishandle government records, regardless of their classification status. The 11th Circuit also said it could not discern why Trump would have "an individual interest in or need" for any of the documents marked as classified.

Trump's lawyers did not immediately respond to a request for comment.


To make matters worse for Trump, Judge Raymond Dearie - the arbiter, or special master, named by Cannon to vet the seized documents - asked Trump's lawyers on Tuesday why he should not consider records marked classified as genuinely classified. Dearie pressed Trump's lawyers to make clear whether they plan to assert that the records had been declassified as Trump claims.

Trump's lawyers proposed Dearie to serve as special master.

"Unless Trump can come up with real evidence saying he went through some kind of declassification procedure and declassified this stuff, there's no way he can prevail on this, and if he had that evidence his lawyers would have presented it," said Ilya Somin, a law professor at George Mason University.

Even as he has stated that he declassified the records, Trump also has publicly suggested that the FBI planted them at Mar-a-Lago. Dearie on Thursday asked trump's lawyers to provide any evidence backing this up.

David Laufman, the Justice Department's former head of counterintelligence, said Trump's comments on Fox News were highly incriminating.

"Prosecutors must lick their chops every time Trump makes a public statement that is equivalent to making evidentiary admissions, like talking about sending documents marked classified down to Mar-a-Lago because, according to his account, he thought about declassifying them," Laufman said.

"It was a great day for the rule of law," Barbara McQuade, a former federal prosecutor and current law professor at the University of Michigan, said of the 11th Circuit's ruling. "It says that the law matters more than anyone's loyalty to a particular person."



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