DOJ files response brief to Trump’s SCOTUS emergency petition. It’s a well argued brief.
You NEED to read the DOJ’s brief because it’s a precise argument and man I do love reading a well articulated argument. Oh -if you thought I didn’t have Lev Parnas on my radar -you’re mistaken-
Okay so if I did this correctly this article should publish while I’m in-flight on my way to Boston. Landing at Logan shortly before 7:30AM. Fair warning my work day is going to be insanely long because some evil genius was like: it’s fine, I drink a lot of Red Bull. And said genius decided that I could turn around and fly back to DC <10.5 hours later.
Sweet Baby Jesus please take the wheel. The recent spat of unplanned trips are largely making sure certain clients understand just how important they are. ProTip for attorneys (and I say this respectfully): you really should refrain from treating support staff like crap. We tend to save your butt, repea
Invariably that same support staff is the primary Point of Contact for clients. I don’t bill clients an hourly or on 15 minute increments. My fully loaded rate is factored into said attorney’s hourly fee. #MitchBetterHaveMyMoney ←I’m being incredibly spicy. I apologize for my failure to tame da spice.
Bookmark this NARA link, or else:
I’m kidding about the “or else” part,.sort of. Conversely if you want factual and oral documents then once again I beseech you to please, for my soul, bookmark this paggf
After all sharing is caring and sometimes I might actually care —for example
Acting Archivist's Response Letter to October 4, 2022, Letter from House Committee on Oversight Reform Ranking Member James Comer. I ran a few LexisNexis searches as was unable to source any public reporting of the aforementioned Oct 4, 2022 NARA letter to ranking member James Comer. And let me tell you that NARA letter is delish. For example on page 1 -which reads in part:
As reflected in the documents that NARA provided to your staff, and posted on our website, on February 25, 2022, NARA’s Director of Congressional Affairs John Hamilton requested a call with Chairwoman Maloney’s staff after NARA received the February 24, 2022, letter from the Chairwoman making a “special access request” for Presidential records under section 2205 of the Presidential Records Act (PRA), 44 U.S.C. 2205(2)(C).
NARA Oct 7th letter to Ranking Member Comer
Importantly the NARA specifically referenced: …”provided to your staff, and posted on our website”it’s a 54 page document of the ongoing communiques between NARA and various Congressional Committees. Not to belabor this topic but my readers should be aware that starting as far back as November 2021 —I was sitting in my tiny corner pumping out facts. Not opinions but actual facts with supporting documents. Perhaps it was my innate Spicy sense but I knew that Trump had unlawfully retained thousands of documents. This is why I’ve repeatedly sounded the alarm, again because I knew some of these underreported documents where critically important.
If interested, the internet archive gods sent me a present because the very real concern; Box, Paper, Woman, Man = “I’m stealing this because it’s m-i-n-e… Trump and record retention pursuant to the PRA and FRA —this is a November 2020 thread. Again not to belabor this issue, some of us have accurately reported Trump v NARA as far back is November 2020. This generalized Substack archive link. Which will direct you to the dozen+ previously published articles.
It’s not that I have an unhealthy fixation with Trump or with NARA —it’s that I have more than three decades of experience in how things really happen/work in DC and arguably most federal courtrooms. Public policy tends to be inextricably linked to litigation. It’s like peanut butter and jelly. Which is why I apply my institutional litigation knowledge with public policy, as it’s a natural correlation.
For the umpteenth time: Jan 19, 2021 letter from Trump to NARA was/is always newsworthy…
If you run a search (I prefer to use LexisNexis because researching is much more amenable to my research style) you’ll note that not a single article was published. I wouldn’t say the mainstream on a whole bypassed that Jan 19, 2021 notice of change in custodian.
See November 2021
Did any of you really think I was sounding the alarm (repeatedly) because I was bored? I can assure you that when I take the time to source as many original documents as possible, that me literally saying: “hey this is important so you should pay attention” —to be clear I have numerous friends in countless Government agencies. I don’t speculate sans actual receipts. Admittedly it’s astonishing to me that no one and I mean no one picked up on the January 19, 2021 change in custody letter from Trump to NARA. (see NARA link to the aforementioned letter)
I’ve repeatedly referenced that Jan 19, 2021 letter because I understood the importance of it —and the strong likelihood that Trump took premeditated actions to break numerous laws. Simply put, in my industry we tend to seek out the “Higgs-Boson” meaning “at the beginning. Understanding the origins can better contextualize every action thereafter.
And if you’re lucky someone will actually present a factual: timeline as we currently know it, which was published a few months ago. I mean I get it that most on social media are in it for the dopamine fix via likes and retweets —but understand that some of us are unwavering in our commitment to a track records and then presenting facts. Simply put —original documents and a whole lot of “what in the freshest of fresh hells is this”—are incredibly important. Moreover I don’t publish articles or conduct exhaustive research because I’m bored. I know that I have a particular skill set and I have an unrelenting desire to chase receipts. Looks around and slowly steps off the Spicy SoapBox..
Now where was I with respect to the under reported facts concerning communications to/from the NARA? Oh yes that’s right, I now refer you to page 2 is the DC way of saying: you are full of nonsense that you couldn’t even cite the correct executive order regarding PRA documents…
I mean this particular paragraph is exquisite in its brutality all while the NARA standing up for itself with dignity and professionalism. The truth is under the Trump Administration, several nonpartisan government agencies were intentionally and falsely accused of being “partisan”
Your letter also noted that neither NARA nor the OIG has offered a “legal source” for not providing you with further documents related to the ongoing Department of Justice (DOJ) investigation. Anytime NARA is asked about a matter that relates to a DOJ investigation, NARA consults with DOJ before responding. In this case, DOJ has requested that NARA not share or otherwise disclose to others information related to this matter at this time in order to protect the integrity of DOJ’s ongoing work.
Must I remind you about the numerous OSC threads? The catalyst for those threads was some falsely sought to demonize this long standing non-partisan agency? Fact: I have a few friends that have spent their entire professional career working for the OSC. They are good and honorable public servants. Yet when one of them called me in 2019 sobbing because someone on Twitter misinformed hundreds of thousands of followers and that resulted in a tsunami of unhinged telephone calls. I literally saw “redrum” rage. They didn’t deserve the unrelenting abuse. Factually speaking Trump had failed to nominate folks to the NLBR AB’s without a quorum the OSC was handicapped (see 2013 archived OSC & NLBR Memorandum of Understanding )
Additionally earlier this week the GSA formally released the following pictures, thus proving this Briebart “news” article is unmitigated hourseshit because the GSA picture. Notice how the pallets are shrink wrapped? So pray tell how could the GSA pack the boxes if they received them sealed with shrink wrap? Spoiler: because DUH the GSA didn’t pack the boxes, purportedly Trump and his aides did. Inconvenient truth…and once again chief Trump propagandist Kash Patel once again caught in a web of lies. You can read more about Kash here, here and here -my rhetorical question still stands…
Source GSA publication of pictures of documents Trump Admin…
And I still stand behind my original assertion -mainly because I have facts and documents to support said assertion…
August 12, 2022: Siri what is Espionage? And why can’t the MSM get their act together, there’s more than 1 warrant —I still maintain (irrespective of the DOJ’s filing) that there are several ongoing investigations and likely several other warrants. I also think Kash Patel should adhere to the doctrine; “silence is the refuge of the wise, zip your yapper Kash because your prolific appearances (Fox News) that’s going to come back and haunt you.
Current SCOTUS Circuit Assignments…
I’m acutely aware that the vast majority of Americans might not understand how SCOTUS Circuit Assignments are made. So, before we do a dive into the Department of Justice’s response. I’d like to clear up any confusion as to Justice Thomas (whom I loathe more than going to the dentist. I know that some of my readers are visual learners. As of September 28, 2022 the Circuit Assignments are as followed (also see SCOTUS website)
District of Columbia Circuit - John G. Roberts, Jr., Chief Justice
First Circuit - Ketanji Brown Jackson, Associate Justice (Maine, Massachusetts, New Hampshire, Puerto Rico, Rhode Island)
Second Circuit - Sonia Sotomayor, Associate Justice(Connecticut, New York, Vermont)
Third Circuit - Samuel A. Alito, Jr., Associate Justice(Delaware, New Jersey, Pennsylvania, Virgin Islands)
Fourth Circuit - John G. Roberts, Jr., Chief Justice(Maryland, North Carolina, South Carolina, West Virginia, Virginia)
Fifth Circuit - Samuel A. Alito, Jr., Associate Justice(Louisiana, Mississippi, Texas)
Federal Circuit - John G. Roberts, Jr., Chief Justice
This isn’t an opinion, the current Circuit Court of Appeal assignments are published at the start of each SCOTUS session . Now that I think you have the factual predicate as to why Trump’s nonsensical and extremely limited SCOTUS filing, was automatically assigned to Justice Thomas. Over a year ago I published this article which factually argued why the 117th and/or 118th Congress should increase the bench to 13 seats. I intentionally stayed away from the political arguments and presented a factual argument. Mainly because I tend to find arguments based upon emotion, tend to be unpersuasive. Facts matter, or at least they should. So let’s get into it what the Government argued, shall we?
Trump sprints to SCOTUS (snort) extremely limited petition.
The primary reason I didn’t write about Trump’s October 4tt filing (see SCOTUS link here) it’s nearly 300 pages of a crafty legal argument. Also you can read the full docket for SCOTUS Case No: 22A283 ←via that embedded link. As you’ll note on October 4, 2022 Justice Thomas ordered a Response to application (22A283) requested by Justice Thomas, due by 5 p.m. (EDT)
See Department of Justice’s October 11, 2022 Response
Trump v. United States, No. 22-cv-81294 (Sept. 5, 2022) (order granting preliminary injunction and providing that a special master shall be appointed) read more here
United States v. Sealed Search Warrant, No. 22-mj-8332 (Aug. 5, 2022) (issuing search warrant) read more here and here
United States Court of Appeals (11th Cir.): Trump v. United States, No. 22-13005 (Sept. 21, 2022) (granting partial stay) read more here
Should you be up for a heavy reading session, see here…the point is Trump’s petition before SCOTUS is extremely limited in scope. I get it that most might not understand what “extremely limited scope” actually means in legalese. My layman’s explanation is, Trump’s initial filing was narrowly tailored, as previously (noted), remember that some of us explained the strategic genius of the DOJ’s September 8th notice of appeal —furthermore I think I did a decent job of explaining why the DOJ’s appeal was narrowly tailored.
Logically that’s why Trump’s brief was/is asking a very narrow question. To be fair I’d be intellectually dishonest if I didn’t say that Trump’s SCOTUS filing isnt well written and argued, because it is. Yes I understand the paradoxical conundrum presented. I suppose even a blind squirrel can grab a nut, every once and a while, but alas I digress. (Snort -blind squirrel argument makes me laugh)
“This application concerns an unprecedented order by the district court restricting the Executive Branch’s use of its own highly classified records in an ongoing criminal investigation and directing the dissemination of those records outside the Executive Branch for a special-master review” page 3
Also I need to be clear on a specific data point —anyone that you see on social media comparing Trump’s October 2022 petition to the January 2022 SCOTUS holding (read more here) either doesn’t understand the legal system or they are talking out of their bloated ass. Mainly due to the fact, that particular case involved two Branches of Government fighting with a co-equal branch of Government. Vis-a-Vis Executive Brach versus the Legislative Branch. Trump’s October 2022 petition is essentially the Executive Branch fighting with the Former Office Holder. Ergo isn’t not a reasonable comparison and those forcing an equivalency need to go chug some STFU juice (offft the Spicy is coming in extra hot today)
The fact is Trump is no longer the Executive. Period. Full Stop. Because the fact is, in America we have one Executive at a time. That’s a basic 3rd grade civics lesson. Meaning Trump’s (unpersuasive) Executive Privilege arguments are not founded in actual law or reality. In short -exactly one year ago I explained the significance of President Biden waiving of Executive Privilege and I specifically opined that Trump would use this argument, yet nothing in he’s arguments actually ameliorates the infirmities of his flawed argument.
Again I’m not going to regurgitate the infirmities contained herein, mainly because I’ve explained the four factors required when “seeking extraordinary relief” from any Federal Court. And I’ve previously explained the genius of the DOJ’s extremely narrow appeal. Nonetheless I now refer you to pages 2 and 3 -which reads in part:
…the government sought only a partial stay of the portions of that order that caused the most serious and immediate harm to the United State sand the public by “enjoin[ing] the government’s use of the classified documents and requir[ing] the government to submit the classified documents to the special master for review.” …The court of appeals granted that modest relief, holding that “the United States is substantially likely to succeed in showing that the district court abused its discretion in exercising jurisdiction over [applicant’s] motion as it concerns the classified documents” and that all of the equitable factors favored a partial stay… (emphasis added)
…DOJ takes precise aim at District Court Judge Cannon…it’s delicious
And yes I’m repeating myself because the precise language used by the DOJ is pretty damn important —hence I’d like to once again draw your attention to the DOJ’s opening salvo —in which they take direct aim at Judge Cannon… it’s a delicious counter argument:
This application concerns an unprecedented order by the district court restricting the Executive Branch’s use of its own highly classified records in an ongoing criminal investigation and directing the dissemination of those records outside the Executive Branch for a special-master review…
Moving on to page 4 -once again the Government articulated a clear and convincing argument which was largely affirmed by the 11thCCOAs. Specifically the DOJ cited directly from the September 11thCCOAs ruling while highlighting the fact that once again Trump’s (not) Kraken-Legal Team failed to follow the pretty straight forward Federal Rules of Civil Procedure… meaning Trump’s failure to properly appeal the 11thCCOAs ruling, instead Trump leaned in to his proclivity of “short cuts”—his SCOTUS petition bypasses the 11thCCOAs.
…Trump can’t be injured because the classified documents do NOT & have never belong to him…
Again you can’t claim injury when the facts unambiguously show those classified documents do not belong to Donald J Trump —those documents are the property of the United States of America government…therefore claiming any colorable injury is not grounded in fact much-less supported by case law. Conversely I suppose you could argue “well SCOTUS has never opined about a current Executive fighting with the former executive. Irrespective of the aforementioned argument, simply put it’s another instance of Trump arguing nonsensical bullshit.
…applicant has no plausible claim of privilege in or ownership of government records bearing classification markings…. See page 4
Ouch that’s going to leave a deep mark…
I get it that reading legal filings can be foreign to most laypeople. But allow me to explain the full on annihilation contained on pages 5 and 6 —here the Government carefully explains how Trump’s arguments are at best flawed, at worst completely unmoored from facts… meaning the Government competently argues concrete and particularized injury. Because the four part argument is absurd exquisite (me likely, a lot)…
“..including Sensitive Compartmented Information and Special Access Program materials.”
Hey remember that time a certain PITA was like: wait Trump had Special Access Program documents…read more here, also see President Biden’s security review of providing Trump with the customary PDB. Months before any of us became aware of the search & seizure warrant —some of us have been repeatedly telegraphing why you should bookmark the NARA webpage (read more here, nearly one year ago I was low key screaming at my readers that you should pay attention to the NARA, again you can read the November 2021 article here) —and yes I’m mindful that sometimes my writing is difficult to read but when I start typing in all caps, that’s me telling you: “Hey this is important, please pay attention“ —Sidetone apparently my stalkers tango downed my YouTube Account and I’m in the midst of filing an appeal to reinstate it. Imagine how damaged in the head you have to be —for that level of obsession. Apparently I’m still living in a few stalkers heads rent free —I suppose I really should update my CAD drawings for the 2 level walk-in closet. I mean if I’m occupying the copious free room in your head, at least I should make myself comfortable. But I digress, at least I’m not fraudulently grifting $10 a month from 285 unsuspecting followers The spice can no longer be contained, and sorry I’m not sorry (snort)
Summary of the Government’s filing…
Look I could be a loquacious wordsmith —but I can oddly sum up the Government’s well articulated argument to SCOTUS in this simple phrase…
…Stay out of this otherwise SCOTUS will suffer institutional harm…
Again you can read the full SCOTUS docket for Case No. 22A283, Trump’s original petition here and the Government’s October 11, 2022 responsehere —in the end as I previously explained (over a month ago) there is a silver lining to the unprecedented District Court’s decision to give Trump the extraordinary relief that I’d argue he is in no way entitled to. For now I think it’s best to wait and see if SCOTUS, specifically Justice Thomas garnering the prerequisite five votes required to take this petition. If you’re asking me how will SCOTUS come dow, that’s a hard pass from me, mainly because I don’t like to make an (albeit an informed) assertion —nope I’d rather just wait and see.
Bonus Files: SEC v Parnas… near lifetime ban…
And as I was writing this article, I received an email alert for the following mater,
According to the SEC's complaint, from 2013 through mid-2019, Parnas, along with another individual, David Correia, raised over $2 million from investors through investments in their entity, Fraud Guarantee…. Parnas and Correia told potential investors that their funds would be used to develop products that would help customers recoup losses resulting from investment or consumer fraud. The complaint further alleged that contrary to Parnas's and Correia's representations, the funds were instead largely used for personal expenses including travel, jewelry, cars, and disbursements at a casino. As alleged, Parnas and Correia also falsely told potential investors that they had raised millions of dollars from other investors and that they had invested hundreds of thousands of dollars of their own money into Fraud Guarantee.
The financial judgement is a thing of beauty.
You can read the newly obtained final judgement via SDNY-ECF or you can pull down the Court filing via my Scribd Account. Generally speaking I refrain from being a document hoarding asshole (snort) -In sum the new Final Judgement the SEC obtained a pretty hefty financial judgement…
The final judgment orders disgorgement of $1,400,746, representing Parnas' ill-gotten gains, and prejudgment interest of $378,844.76, and that disgorgement shall be deemed satisfied by the restitution order entered against Parnas in the parallel criminal proceeding, United States v. Parnas, et al., 19 Cr. 725 (JPO). In that proceeding, Parnas pleaded guilty and has been sentenced and ordered to pay restitution and forfeit assets.
Again I apologize for being somewhat out of pocket for the past 11+ days. I’ll be heading to our beach house, after returning from Boston. And I shall remain there until early November. YES —I already sent in my absentee ballot because this particular midterm, there’s a lot on the line, not the least of which the future of our fragile democracy. Lastly to properly set your expectations, I will resume Substack publications starting on or about October 16, 2022 with the goal of “sine die” but I want to take a few additional days for much needed self-care. Largely because three back to back business trips has drained me of my otherwise ubiquitous “energizer bunny” energy. SeeI really am listening to my grief counselor and proactively setting boundaries for myself. Which is difficult because innately I’m a “oh you think I can’t do it all —watch me” type of person but I’m beginning to fully understand the value of actual self-care and preemptively setting boundaries.
💖🤗.