Trump raising the specter that “not all the documents are classified” sans proof.

In response to the DOJ’s Motion to Stay pending appeal -Team Trump pulls the “the documents are not classified” move because that’s his only pivot

As previously mentioned late last week, the Government filed a Motion to Stay Pending Appeal;

• DOJ files an Appeal to Judge Cannon’s Special Master Order but it’s extremely narrowly tailored appeal.

  • Later updated at 11:11PM: Motion To Unseal Notice of Status of Privilege Review Team's Filter Process by United States Of America.

• Late Friday Evening the parties filed the Statement/Scope of Work (SOW)

  • Parties then proposed four potential candidates (I’m fairly confident that the one of the two Trump nominated do not nor have ever held the prerequisite TS/SCI) just saying

Trump’s Argument: “In what at its core is a document storage dispute that has spiraled out of control”

Look I’m going to warn you that Trump’s response is an oddly well argued argument, except for one fatal flaw. To date Trump has offered zero evidence that any of the classified documents had been declassified. Meaning the documents went through the mandatory review by the Agency who created the classified documents. Again you can pull down a copy of Trump’s response from my Scribd account or you can pay $2.10 via SDFL-ECF

Absent that exculpatory evidence, there is nothing in Trump’s filing that can remotely ameliorate the fatal flaws of his arguments. However the audacity that Team Team once again seeks to minimize the impact of his unlawful retention and storage, it’s an assault on commonsense. And while most of my readers expect a comprehension analysis, unfortunately I’m under a time constraint and that limits my ability to provide you with the customary analysis. But again I wanted my readers to have timely access to Trump’s Response (via Scribd)

For example: this is Trump’s opening salvo…again Trump’s (albeit more artful argument) absolutely defies logic and commonsense. Largely because to date we do not know (if any) impact Trump’s careless handling of highly classified documents might (operative word) have on our National Security.

And while on its face Trump might have a point but I’d like to explain the nuance of Trump’s ever evolving argument. Mainly because Trump fails to delineate that the Department of Justice specifically requested that the Office of Director of National Intelligence conduct an exhaustive investigation into the potential national security impact. All while ignoring that several sections/units/divisions within the FBI are also charted with investigating matters related to National Security.

Additionally I’d like to point out the level of maddening subterfuge that Trump heavily relies upon in his September 12, 2022 Response and how last Friday Trump’s proposed Order regarding the Special Master explicitly stated, in his view, the Special Master should be prohibited from engaging with the NARA.

It’s this particular part of Trump’s argument that is literally him speaking out of both sides of his mouth and stunningly contradictory to what he had previously filed, as specified on his Proposed Order, regarding the duties of the Special Master, which reads in part:

…disputes regarding the disposition of any Presidential record are to be resolved between such President and the National Archives and Records Administration (“NARA”). Thus, at best, the Government might ultimately be able to establish certain Presidential records should be returned to NARA… (emphasis added)

Trump contends the classified documents are his presidential records…

Again and I can not emphasize this enough, at no time has Trump proffered any evidence that the cache of highly classified documents were in fact declassified. Absent that evidence, then it’s reasonable to assume Trump never classified those documents nor does he have any “standing” to now claim those documents are his documents. To be clear Trump’s new legal team is attempting to be clever by invoking “Trump’s presidential records” but their arguments fail to be supported by evidence of de-classification…the following paragraph caused me to throw my phone against the wall —because the audacity of this argument is beyond offensive, it’s enraging:

…the Government’s stance assumes that if a document has a classification marking, it remains classified irrespective of any actions taken during President Trump's term in office. Third, as noted above, the Government continues to ignore the significance of the PRA. Indeed, if any seized documents (including any purported “classified records”) are Presidential records, President Trump (or his designee, including a neutral designee such as a special master) has an absolute right of access to same under the PRA. 44 U.S.C. § 2205(3).

The Footnotes are -interesting-

Look I’ve long held that those who know how to read court filings, know that the footnotes are where the action is and that remains true and likely will for all eternity… for example Footnote 3 is very telling but I also think it’s Trump tacitly acknowledging he can’t possibly argue what he is;

course, as the Order contemplates, to the extent there is any legitimate national security interest at issue, the Government is free to proceed. Likewise, President Trump has no interest in impeding any action which advances the national security interests of the United States. (emphasis added)

… there it is Trump’s argument the documents are really classified…

Again this is why it’s important to read the whole filing, because most casual observers will overlook pages 7 and 8 —but then again I know my readers are not casual observers. Notwithstanding there it is, on page 8 - there in black and white, this is an argument that has zero ambiguity:

…Government has not proven these records remain classified. That issue is to be determined later…

Unfortunately for now I have my weekly teams call, which starts just around 2PM. That means I don’t have the bandwidth to do an exhaustive and deep dive analysis of Trump’s September 12, 2022 Response to the Government’s Motion to Stay pending appeal

However before I bid you goodbye here’s one final chef’s kiss. Realistically there is only one person to blame here. And that is Donald J Trump —again to date he has not provided any evidence (nor have any Federal agencies that originated those highly classified documents) that Trump had followed the CFR, letter of the law —when doing the mandatory de-classified review process. The fact that Trump has repeatedly conceded that he is in serious criminal jeopardy, brings me incandescent joy (again you can pull down Trump’s filing from my Scribd account)

The Government claims this Court cannot enjoin use of the documents the Government has determined are classified. [ECF No. 69 at 5-8]. Therefore, the argument goes, as President Trump has no right to have the documents returned to him—because the Government has unilaterally determined they are classified—the Government should be permitted to continue to use them, in conjunction with the intelligence communities, to build a criminal case against him.

However, there still remains a disagreement as to the classification status of the documents. The Government’s position therefore assumes a fact not yet established.

And of course your daily saltwater therapy but when I say I was [__this__] close to getting “the shot” I was literally that close. And there isn’t a chance that I’ll give up, eventually I will get the shot.

file411_dc

A post shared by File411 (@file411_dc)

It is unlikely that I’ll publish an article tomorrow or on Wednesday. As I’m going to be out of town attending an industry symposium on intellectual property rights in the digital age (next month I’ll be in NoLa for a few days) and I genuinely contemplate skipping this work trip until I saw it “was mandatory” So I don’t want my readers to become worried if I go dark for a few days. Eventually I’ll be back and I’m certain you’ll be fine with a little less me and my spicy snark.

Be Well -Filey