Today's Smarmspace Antics

Eric Wemple at WaPo breaks down the nuisance lawsuit filed by Trump against CNN.

And while he does it right - pointing out the silliness of Trump's assertions, and the fact it's not going anywhere - he leaves out what I think is the motivation for it - the thing that Trump is always angling for - which is to come up with something he can pimp to the rubes so they focus on him as the avatar for their delusions of persecution, and perceived grievance. If he stops doing that, then the flow of money stops, and his power dissipates.

(pay wall)

Opinion
Trump sued CNN for defamation. Here’s where his case falls apart.

Did Donald Trump miss the news? Under Chris Licht, CNN’s new chairman and CEO, the network is embracing middle-of-the-road newscasting and has parted ways with high-profile staffers who spoke in blunt terms about Trump’s behavior in office.

If the former president is grateful, he’s not showing it. Trump filed suit against CNN on Monday, alleging that it has strived “to defame [Trump] in the minds of its viewers and readers for the purpose of defeating him politically.” This culminated “in CNN claiming credit for ‘[getting] Trump out’ in the 2020 presidential election,” according to the complaint filed in a Florida federal court.

Trump is seeking $475 million in punitive damages. Like other Trump lawsuits, this one lacks substance — more bluntly, it’s garbage — with its only utility being as a guide to this country’s wide-ranging First Amendment protections. CNN, in earlier correspondence with Trump excerpted in the legal filing, told the former president’s counsel, “While we will address the merits of any lawsuit should one be filed, we note that you have not identified a single false or defamatory statement in your letter.”

Although Trump’s financial demands run to nine figures, the document behind them is a flimsy 29 pages. It takes issue with statements aired on CNN that accuse Trump of pushing the “big lie” and that characterize him with the “false ... and defamatory labels of ‘racist,’ ‘Russian lackey,’ ‘insurrectionist,’ and ultimately ‘Hitler.’ ” The most facially laughable of these, of course, is “Russian lackey,” which is not only an innocuous put-down but also rests, in part, on one of the most infamous moments in U.S. diplomatic history — when then-President Trump sided with Russia over U.S. intelligence regarding Russian interference in the 2016 presidential election.

The other allegedly “defamatory labels” are no such thing. Here are a few claims in the complaint, followed by explanations as to why they aren’t defamatory:

· Psychiatrist Allen Frances told then-CNN host Brian Stelter in August 2019, “Trump is as destructive a person in this century as Hitler, Stalin and Mao were in the last century.” Frances also said: “He may be responsible for many more million deaths than they were. He needs to be contained but he needs to be contained by attacking his policies, not his person. It’s crazy for us to be destroying the climate our children will live in. It’s crazy to be giving tax cuts to the rich that will add trillions of dollars to the debt our children will have to pay. It’s crazy to be destroying our democracy by claiming that the press and the courts are the enemy of the people.” Trump argues in his complaint that PolitiFact cited part of Frances’s statement as a “Pants on Fire” falsehood.

This was a dark moment for CNN. Stelter later admitted that he should have challenged Frances (he cited technical problems, saying he hadn’t heard the statement). But the unspecific nature of the commentary and the way it’s couched — that Trump “may be” responsible for the deaths — place it in the realm of rhetorical hyperbole. Shameless commentary isn’t always libelous. “I’m reasonably confident that a court would rule that, taken in context, that passage is an expression of opinion by Dr. Frances about the human toll of policies Trump pursued, which is protected by the First Amendment,” Lee Levine, a longtime media defense attorney, tells me by email.

· House Democrats in March 2019 likened aspects of Trump’s rise to Hitler’s, as CNN reported then. According to the suit, “the ‘reporting’ is nothing more than self-serving pronouncements by political opponents of [Trump] and their news proxy (and political participant), CNN.”

Read the statements in question, and it’s clear why they’re not remotely defamatory. For instance, House Majority Whip James E. Clyburn (D-S.C.) said, “Adolf Hitler was elected chancellor of Germany. And he went about the business of discrediting institutions to the point that people bought into it.” Clyburn also said: “Nobody would have believed it now. But swastikas hung in churches throughout Germany. We had better be very careful.”

To defame someone, you must make a false statement that purports to be a fact about that person. In this instance, Clyburn is speaking to historical parallels and political trends, not launching the sort of ad hominem attacks necessary to win a defamation claim.

· CNN host Jake Tapper said on a show in January 2022: “There is a reason Trump was in Arizona, to push the legislature to disenfranchise the state’s voters based on all of his deranged election lies.”

Those italics are in the lawsuit, apparently seeking to highlight the defamatory sting of Tapper’s remarks. Except they are no such thing. It’s well established that Trump has been told, again and again, that his claims about a stolen election are false. His persistence in airing these claims suggests that he’s lying, though Trump’s lawyers have said that he “subjectively believes that the results of the 2020 presidential election turned on fraudulent voting activity in several key states.”

Even if Trump believed his own statements, however, Tapper’s commentary would be protected as hyperbole — a valued commodity in a democratic society.

CNN’s lawyers will also likely argue that the challenged statements in the suit are, to a large extent, protected as assertions of opinion — the very doctrine that Trump deployed to get out of a lawsuit brought by a Republican strategist in 2016.

The complaint also argues that CNN has treated Trump’s claims of a stolen election differently from various claims by Democrats in recent election cycles. Set aside for a moment the fact that Trump’s claims have been more persistent, more egregious and more impactful, as we all saw at the Capitol riot of Jan. 6, 2021. Even if CNN had treated Democratic claims of voter fraud more favorably, that would be protected First Amendment activity. Just think what would happen to Fox News if slanted reporting amounted to libel.

· Licht held a conference call in June 2022 in which he expressed low regard for the wording “big lie,” a term with Nazi origins. “Since then,” reads the complaint, “CNN’s on-air personalities — including John King, Jake Tapper, John Avlon, Brianna Keilar, and Don Lemon, among others — have continued to use the phrase in describing [Trump and Trump’s] questions of election integrity despite an apparent admonition from their Chief Executive Officer.”

So what? This is a management issue for CNN, not a legal one.

Calling presidents liars, even when they’re honest, is a great American tradition. Trump, the greatest liar in American political history, stands no chance of upending it.

About Judge Cannon

I'll probably go on referring to judges like Aileen Cannon as "Trump's own", but I want to keep in mind that while 45* had to sign off on all of their appointments - for the sake of official protocol - most of these Smarmspace Rangers are on the bench now because The Federalist Society and Mitch McConnell put them there.

Trump is simply a pile of partially animated meat with just enough sentience to hold a pen and sign his name. IOW, he's exactly the schmuck that guys like Grover Nordquist have been salivating for all these years.

That said, looking at her Wikipedia page, I think we get a fair idea of why she's where she is, and what she was put there to do.

FWIW - this was a lame duck confirmation

So anyway -

(pay wall)

A thorough rebuke of Judge Aileen Cannon’s pro-Trump order

From a panel that was two-thirds comprised of fellow Trump-nominated judges, no less.

As U.S. District Judge Aileen M. Cannon ruled twice in the Mar-a-Lago documents case for the former president who nominated her to the bench, many legal experts — including conservatives and executive-power advocates — have strained to understand how she could have reached such conclusions about Donald Trump’s claims.

On Wednesday night, two fellow Trump nominees joined with another judge to provide the rebuke of Cannon’s jurisprudence that those experts suggested might be coming.

A three-judge panel of the U.S. Court of Appeals for the 11th Circuit was rather unsparing in unanimously granting the Justice Department a reprieve from Cannon’s order barring them from reviewing documents with classified markings seized from Mar-a-Lago. The stay is temporary, but the reasoning is firm.

They repeatedly rejected not just the Trump legal team’s lack of arguments, but also Cannon’s acceptance of them. Indeed, they suggested it was inexplicable that Cannon ruled for Trump even by her own logic.

The ruling really kicks into gear when the judges address what a 1977 Supreme Court case considered the “foremost consideration” in deciding whether a court such as Cannon’s should exercise jurisdiction in such a case: whether the government “displayed a callous disregard for … constitutional rights” in its seizure.

The judges say Cannon conceded that it hadn’t displayed such disregard, but then disregarded that consideration all the same — and say she thus “abused” her “discretion.”

“Here, the district court concluded that [Trump] did not show that the United States acted in callous disregard of his constitutional rights. No party contests the district court’s finding in this regard,” the judges write. “The absence of this ‘indispensab[le]’ factor … is reason enough to conclude that the district court abused its discretion in exercising equitable jurisdiction here.”

The judges continue, rather dryly: “But for the sake of completeness, we consider the remaining factors.”

Cannon might wish they hadn’t.

On the second test — whether Trump has an interest in the documents marked classified at issue — the judges note that Cannon ruled Trump had an interest in some of the documents seized.

“But none of those concerns apply to the roughly one-hundred classified documents at issue here,” the judges write, before twisting the knife a little more: “And the district court made no mention in its analysis of this factor as to why or how Plaintiff might have an individual interest in or need for the classified documents.”

Indeed, Cannon’s apparent lack of curiosity — best exemplified by her acceptance of the Trump legal team’s claims that the documents might have been declassified without actually stating as much — was a feature of the remainder of the opinion. The judges repeatedly note Trump’s lawyers weren’t even compelled to furnish arguments on some of the crucial matters at hand. And they say that even if they had been, it might not have mattered.

“Plaintiff has not even attempted to show that he has a need to know the information contained in the classified documents,” they write. “Nor has he established that the current administration has waived that requirement for these documents. And even if he had, that, in and of itself, would not explain why Plaintiff has an individual interest in the classified documents.”

They go on to not only rebuke Cannon’s ruling, but the very idea that Trump’s public, out-of-court claims (which his lawyers have conspicuously declined to echo) that he declassified the documents even matters — a crucial point that shouldn’t be lost in all of this.

“Plaintiff suggests that he may have declassified these documents when he was President. But the record contains no evidence that any of these records were declassified,” the judges write. “And before the special master, Plaintiff resisted providing any evidence that he had declassified any of these documents.”

They add: “In any event, at least for these purposes, the declassification argument is a red herring because declassifying an official document would not change its content or render it personal. So even if we assumed that Plaintiff did declassify some or all of the documents, that would not explain why he has a personal interest in them.”

It’s an opinion that brings home virtually all of the criticism of Cannon’s ruling and even of the significance of the underlying dispute over the classification status of the documents. It’s saying both that she got it wrong — and that it’s beside the point.

But Cannon is hardly the only one to suffer a rebuke in the opinion. Trump has publicly claimed he declassified all of the documents, but his lawyers watered that down to suggest merely that he might have, and Cannon accepted that evidence-free claim as rendering the documents’ status as in dispute. Yet judges signaled that they have no time for any of it. Rather, they repeatedly refer to the documents as classified, without qualifying that description in any way.

They refer to “the roughly one-hundred classified documents at issue here” and repeatedly to “the classified documents.” And in their concluding sentence, they twice flat-out call them classified: “The district court order is STAYED to the extent it enjoins the government’s use of the classified documents and requires the government to submit the classified documents to the special master for review.”

It’s the second time in two days that judges have undercut the Trump legal strategy that Cannon accepted, after the special master, Raymond J. Dearie, pressed Trump’s legal team much more than she had on its unsubstantiated declassification claims.

And for the second time in two days, it comes from judges Trump himself recommended.

She Said It

Yes, Liz Cheney kinda spilled the beans on chickenshit Republicans in the House.

MSNBC - Morning Joe

Today's Debunkment

We seem to be transitioning from the Trump Firehose Of Bullshit Phase, to the Holy-Fuck-The-Dems-Are-Killin'-It phase, but kinda flopping back and forth a little.

ie: When we're able to celebrate another Biden win, we're not having to shovel Trump's shit off the sidewalk, but then we have to go back and shovel Trump's shit off the sidewalk again because that prick just won't stop shitting on the fucking sidewalk.

"One theory floated by Trump defenders is that by simply handling the materials as president, Trump could have effectively declassified them. It actually doesn’t work that way – presidential declassification requires an override of Executive Order 13526, must be in writing, and must have occurred while Trump was still president – not after. If they had been declassified, they should have been marked as such."

I guess the good news is that the Press Poodles are doing some decent debunking of their own, and not just pretending they can report the shit, and that's enough.

The Conversation:

You don’t have to be a spy to violate the Espionage Act – and other crucial facts about the law Trump may have broken

The federal court-authorized search of former President Donald Trump’s Florida estate has brought renewed attention to the obscure but infamous law known as the Espionage Act of 1917. A section of the law was listed as one of three potential violations under Justice Department investigation.

The Espionage Act has historically been employed most often by law-and-order conservatives. But the biggest uptick in its use occurred during the Obama administration, which used it as the hammer of choice for national security leakers and whistleblowers. Regardless of whom it is used to prosecute, it unfailingly prompts consternation and outrage.

We are both attorneys who specialize in and teach national security law. While navigating the sound and fury over the Trump search, here are a few things to note about the Espionage Act.
Espionage Act seldom pertains to espionage

When you hear “espionage,” you may think spies and international intrigue. One portion of the act – 18 U.S.C. section 794 – does relate to spying for foreign governments, for which the maximum sentence is life imprisonment.

That aspect of the law is best exemplified by the convictions of Jonathan Pollard in 1987, for spying for and providing top-secret classified information to Israel; former Central Intelligence Agency officer Aldrich Ames in 1994, for being a double agent for the Russian KGB; and, in 2002, former FBI agent Robert Hanssen, who was caught selling U.S. secrets to the Soviet Union and Russia over a span of more than 20 years. All three received life sentences.

But spy cases are rare. More typically, as in the Trump investigation, the act applies to the unauthorized gathering, possessing or transmitting of certain sensitive government information.

Transmitting can mean moving materials from an authorized to an unauthorized location – many types of sensitive government information must be maintained in secure facilities. It can also apply to refusing a government demand for its return. All of these prohibited activities fall under the separate and more commonly applied section of the act – 18 U.S.C. section 793.

A violation does not require an intention to aid a foreign power

Willful unauthorized possession of information that, if obtained by a foreign government, might harm U.S. interests is generally enough to trigger a possible sentence of 10 years.

Current claims by Trump supporters of the seemingly innocuous nature of the conduct at issue – simply possessing sensitive government documents – miss the point. The driver of the Department of Justice’s concern under Section 793 is the sensitive content and the connection to national defense information, known as “NDI.”

One of the most famous Espionage Act cases, known as “Wikileaks,” in which Julian Assange was indicted for obtaining and publishing secret military and diplomatic documents in 2010, is not about leaks to help foreign governments. It concerned the unauthorized soliciting, obtaining, possessing and publishing of sensitive information that might be of help to a foreign nation if disclosed.

Two recent senior Democratic administration officials – Sandy Berger, national security adviser during the Clinton administration, and David Petraeus, CIA director under during the Obama administration – each pleaded guilty to misdemeanors under the threat of Espionage Act prosecution.

Berger took home a classified document – in his sock – at the end of his tenure. Petraeus shared classified information with an unauthorized person for reasons having nothing to do with a foreign government.

The act is not just about classified information

Some of the documents the FBI sought and found in the Trump search were designated “top secret” or “top secret-sensitive compartmented information.”

Both classifications tip far to the serious end of the sensitivity spectrum.

Top secret-sensitive compartmented information is reserved for information that would truly be damaging to the U.S. if it fell into foreign hands.

One theory floated by Trump defenders is that by simply handling the materials as president, Trump could have effectively declassified them. It actually doesn’t work that way – presidential declassification requires an override of Executive Order 13526, must be in writing, and must have occurred while Trump was still president – not after. If they had been declassified, they should have been marked as such.

And even assuming the documents were declassified, which does not appear to be the case, Trump is still in the criminal soup. The Espionage Act applies to all national defense information, or NDI, of which classified materials are only a portion. This kind of information includes a vast array of sensitive information including military, energy, scientific, technological, infrastructure and national disaster risks. By law and regulation, NDI materials may not be publicly released and must be handled as sensitive.

The public can’t judge a case based on classified information

Cases involving classified information or NDI are nearly impossible to referee from the cheap seats.

None of us will get to see the documents at issue, nor should we. Why?

Because they are classified.

Even if we did, we would not be able to make an informed judgment of their significance because what they relate to is likely itself classified – we’d be making judgments in a void.

And even if a judge in an Espionage Act case had access to all the information needed to evaluate the nature and risks of the materials, it wouldn’t matter. The fact that documents are classified or otherwise regulated as sensitive defense information is all that matters.

Historically, Espionage Act cases have been occasionally political and almost always politicized. Enacted at the beginning of U.S. involvement in World War I in 1917, the act was largely designed to make interference with the draft illegal and prevent Americans from supporting the enemy.

But it was immediately used to target immigrants, labor organizers and left-leaning radicals. It was a tool of Cold War anti-communist politicians like Sen. Joe McCarthy in the 1940s and 1950s. The case of Julius and Ethel Rosenberg, executed for passing atomic secrets to the Soviet Union, is the most prominent prosecution of that era.

In the 1960s and 1970s, the act was used against peace activists, including Pentagon Paper whistleblower Daniel Ellsberg. Since Sept. 11, 2001, officials have used the act against whistleblowers like Edward Snowden. Because of this history, the act is often assailed for chilling First Amendment political speech and activities.

The Espionage Act is serious and politically loaded business. Its breadth, the potential grave national security risks involved and the lengthy potential prison term have long sparked political conflict. These cases are controversial and complicated in ways that counsel patience and caution before reaching conclusions.

Meanwhile, In Smarmspace

Justin King - Beau Of The Fifth Column

Smarmspace: the distance between promise and delivery; between the spirit of the law and the letter of the law; where loopholes are found, and often manufactured; the land of rationalization. Trump is The King Of Smarmspace, and he's taught his devotees well.

Qult45

Stochastic terrorism is a real thing, and it's one of the main weapons in the Daddy State arsenal.

So I don't have much sympathy for the rubes who've been suckered by a charismatic cult leader, but there's something to what Ms Rosenberg has to say here - something worth noting about how we need to be watchful so we're not helping to embolden these idiots, and making things worse inadvertently.

That said, I still have to lean towards "get your heads outa your asses, guys - then we can talk."

WaPo: (pay wall)

Opinion
The horror of people willing to die for Donald Trump

On Thursday afternoon, a man whom authorities have identified as Ricky Shiffer was shot and killed in a stand-off with police officers after he allegedly tried to break into a FBI office in Cincinnati. Reports suggest that he may have been motivated by a strong devotion to former president Donald Trump and by anger at the FBI’s search of Trump’s Mar-a-Lago resort.

On Thursday evening, The Post reported that according to sources, the search at Mar-a-Lago was aimed in part at recovering “classified documents relating to nuclear weapons.” Trump’s response? A post on Truth Social, the platform he founded, declaring, “Nuclear weapons issue is a Hoax,” and a false suggestion that “Barack Hussein Obama” had done something similar.

But whatever we may learn about Shiffer’s motivations and the results of the FBI search, one thing is clear: The number of people who have died seemingly in service of an idol as unworthy as Donald Trump is tragic.

It’s one thing for Trump to relieve his followers of their money for dubious causes. (The former president has raked in millions of dollars ostensibly dedicated to political work, when in reality what money has been spent has gone to Trump’s personal expenses, according to Post sources.)

And goodness knows, Trump isn’t the only person whose acolytes behave wretchedly. Die-hard Johnny Depp fans and the stans who enlisted in rapper Kanye West’s online war against actor Pete Davidson are proof that nasty crusades of all types will never lack for recruits.

But it’s different when people start dying.

Four of Trump’s supporters died at the Jan. 6, 2021, riot at the Capitol: Ashli Babbit, who was shot while trying to climb through a broken window; Kevin Greeson, who suffered a fatal heart attack; Benjamin Philips, who succumbed to a stroke; and Rosanne Boyland, whose official cause of death was “acute amphetamine intoxication,” but who was caught up in a crush of bodies on the Capitol grounds. Christopher Stanton Georgia died by suicide later that month after he was arrested on unlawful entry charges stemming from Jan. 6; he pleaded not guilty before his death.

Now comes the death of Shiffer, who was also apparently at the Capitol on Jan. 6.

The Post's View: After the Mar-a-Lago search, horrific violence follows reckless rhetoric

Some might be tempted to create distance from these tragedies through mockery, or by treating Trump’s devotees as oddities.

That impulse — to disparage or dismiss the weird and extreme — seems to undergird a 2020 New York Times profile of a widowed farmer in India who adopted Trump as a personal deity, then collapsed and died after taking to his room and refusing to eat when Trump tested positive for covid-19. It’s also the sentiment behind so much snide social-media chatter. For instance: “some dude woke up today and decided to commit suicide by cop bc the former host of celebrity apprentice wasnt allowed to keep the top secret documents he stole from the white house.”

It's easy to scoff. But this sort of commentary ignores the sadness running through so many of these stories.

Ashli Babbitt was looking for meaning because her military career had stalled out, and her pool company was failing. The QAnon conspiracy theory — which presents Trump as a bulwark against a secret cabal of powerful pedophiles — gave Rosanne Boyland purpose and a framework for understanding the world as she struggled with addiction.

The absurdity and maliciousness of the cause for which these people have died only compounds the horror of their deaths. How is it that no one, no institution, could offer something more substantive than the manifest hollowness of Trump and Trumpism?

An essential part of Trump’s malign magic is its impermeability. Suggest that his followers deserve better — whether that is an actual infrastructure package or a leader who appeals to their best qualities rather than their basest — and you’re accused of exhibiting the very contempt that made Trump attractive in the first place. Suggest Trump is scamming his followers, and you’re a tool of the deep state. According to Trump and his many enablers, there is no evidence that isn’t planted or manufactured, no moral act that is disqualifying, no act for which Trump himself can be held responsible.

Even the people who seek to martyr themselves in Trump’s defense can be redefined and reinterpreted through this corrupt logic: On social media, Trump fans aren’t celebrating Shiffer as a Trumpist patriot. They’re dismissing him as a false flag planted to paint the FBI in a flattering light.

Those of us who live outside the boundaries of this mad realm may be tempted to count ourselves lucky. Still, we should be concerned for the residents of Trumpland for their own safety. And if that’s not enough, we should care because the people who die for Donald Trump may someday take others with them.

Comin' Back To Bite Ya

When the tailor-made pandering bullshit comes back around and kicks you right in the balls, because the election you were so sure you'd rigged adequately in your favor didn't turn out the way you needed it to.

They put this shit into the law because they believed they'd never be out of power, and they could turn that law in any direction they deemed necessary to punish dissent. Prove me wrong.

WaPo: (pay wall)

Citizen Trump may have broken a law that President Trump made a felony

There are not many people who know exactly why FBI agents searched Donald Trump’s Mar-a-Lago estate on Monday. The FBI knows, certainly, and the former president and his attorneys probably have a good sense as well, given that they saw the search warrant. Everyone else is operating on what’s been revealed by Trump’s team and public reporting: The FBI search was largely or entirely a function of the investigation into Trump’s retention of documents after leaving the White House.

We know that he did, by his own admission. This year, a number of boxes of material were turned over to the National Archives. Included in that material were some that were classified. On Monday, the FBI removed another dozen boxes, with speculation rampant that more of that material was similarly restricted.

If Trump is found to have violated federal law in removing and retaining classified documents without authorization, he could be convicted of a felony punishable by five years in prison. And that conviction would be a felony carrying that punishment because of a law signed by President Donald Trump.

Trump’s 2016 campaign was intertwined with a similar question. His Democratic opponent, former secretary of state Hillary Clinton, had been found to have operated a private email server that she used for official business — including, the FBI determined, some that was classified. Trump and his allies pushed for Clinton to face criminal charges but in July 2016, FBI Director James B. Comey announced that the FBI wouldn’t seek an indictment. Trump was furious, but he won anyway.

During his first year in office, a central tool used for surveillance by the intelligence community — Section 702 of the FISA Amendments Act — was set to expire. Shortly before it did, Congress passed an extension of the authority for another five years.

But that didn’t come without turmoil. Trump came into office angry at the intelligence community for revealing to reporters that it believed Russia had interfered in the 2016 election. He excoriated intelligence agencies on Twitter — and continued to do so as the contours of the investigation into that interference became clear.

On the day that the House was set to vote on the reauthorization, Trump complained on Twitter:

“House votes on controversial FISA ACT today.” This is the act that may have been used, with the help of the discredited and phony Dossier, to so badly surveil and abuse the Trump Campaign by the previous administration and others?

The tweet freaked out advocates of the extension. A few hours later, he tweeted his support and it passed. On Jan. 18, 2018, he signed it into law.

What became law was S. 139. It had been introduced by Sen. Orrin G. Hatch (R-Utah) as the Rapid DNA Act of 2017. But sometimes Congress hollows out existing legislation and replaces it entirely with other legislation to move the process forward more quickly. So S. 139 was replaced with H.R. 4478, which extended Section 702 for another five years.

It also had a stipulation editing 18 U.S. Code §1924. It originally read:

Whoever, being an officer, employee, contractor, or consultant of the United States, and, by virtue of his office, employment, position, or contract, becomes possessed of documents or materials containing classified information of the United States, knowingly removes such documents or materials without authority and with the intent to retain such documents or materials at an unauthorized location shall be fined under this title or imprisoned for not more than one year, or both.

With Trump’s signing S. 139 into law, that became: “ … shall be fined under this title or imprisoned for not more than five years, or both.” And with that, it became a felony.

You can see how Trump absconding with classified material to Mar-a-Lago would facially violate the law as articulated. So Trump’s allies have already been offering a rationalization: He had declassified everything he took to Mar-a-Lago.

In an interview on Fox News Tuesday night, former Trump administration official Kash Patel made this case.

“What I can tell you definitively is that President Trump was a transparency president,” Patel said when asked if there was any classified material at Trump’s Florida estate. “And time and time again … we tried to get all of it out. And President Trump, on multiple occasions at the White House, declassified whole sets of documents. Including — I remind you and your audience that around October of 2020, he issued a statement from the White House declassifying every document related to not just the Russiagate scandal, but also the Hillary Clinton email scandal.”

Trump did, in fact, order the wholesale declassification of a number of documents related to those investigations, including on the day before he left office. At that point, though, the order was to declassify documents that had been cleared by the FBI a few days prior.

In an interview with Breitbart in May (at the time reports about classified material at Mar-a-Lago first emerged), Patel made a slightly different argument.

“Trump declassified whole sets of materials in anticipation of leaving government that he thought the American public should have the right to read themselves,” he said. “The White House counsel failed to generate the paperwork to change the classification markings, but that doesn’t mean the information wasn’t declassified.”

In other words, Trump declassified a bunch of stuff, even if there isn’t record of it. This obviously is very convenient — but also not completely ridiculous.

In 2017, on the day after he fired Comey, Trump welcomed senior Russian officials into the Oval Office for a meeting. During that discussion, he revealed to them classified information. That report spurred an unexpected defense as articulated by Sen. James E. Risch (R-Idaho) and others: The president has full authority to declassify things and can, in essence, do so on the fly. Fact-checkers considered this idea … and determined it to be largely accurate.

We’re trudging toward a very gray area here, clearly, but it is conceivable that Trump’s defense against his potential possession of classified material at Mar-a-Lago may be that he declassified it while still president, even if no formal record of the declassification was made. This introduces a slew of other questions, since that material would now presumably be publicly available in some form.

“The president has unilateral authority to declassify documents — anything in government,” Patel told Breitbart. “He exercised it here in full.”

Patel was one of the administration’s most loyal defenders during Trump’s presidency. As a staffer to Rep. Devin Nunes (R-Calif.), Patel was intimately involved in the congressman’s fervent effort to push back against the investigation into Russian interference. Nunes was also a critic of Clinton’s handling of her email server, suggesting at one point in 2016 that he hoped “the irresponsible handling of classified information documented by the FBI will be considered if any of these individuals currently possesses a security clearance or applies for one in the future.”

H.R. 4478, the legislation that became S. 139 and which escalated the punishment for the retention of classified material, was introduced in the House by Nunes.

Gimme My Shit Back, Asshole

The records that Trump took from the White House don't belong to him. They belong to us.

He had no right to take them, and he had a legal obligation to return them. All of them.

WaPo: (pay wall)

Mar-a-Lago search appears focused on whether Trump, aides withheld items

A lawyer for Donald Trump said agents seized about a dozen boxes on Monday, months after 15 boxes of items were returned

In the months before the FBI’s dramatic move to execute a search warrant at former president Donald Trump’s Florida home and open his safe to look for items, federal authorities grew increasingly concerned that Trump or his lawyers and aides had not, in fact, returned all the documents and other material that were government property, according to people familiar with the discussions.

Officials became suspicious that when Trump gave 15 boxes of items to the National Archives about seven months ago, either the former president or people close to him held on to key records — despite a Justice Department investigation into the handling of classified and other material that had been sent to the former president’s private club and residence in the waning days of his administration.

Over months of discussions about whether documents were still missing, some officials also came to suspect Trump’s representatives were not truthful at times, according to people familiar with the matter who spoke on the condition of anonymity to discuss an ongoing investigation.

On Tuesday, a lawyer for Trump said the agents who brought the court-approved warrant to Mar-a-Lago a day earlier took about 12 more boxes after conducting their search.

People familiar with the investigation said that Justice Department and FBI officials traveled to Mar-a-Lago this spring, a meeting first reported by CNN. The officials spoke to Trump’s representatives, inspected the storage space where documents were held, and expressed concern that the former president or people close to him still had items that should be in government custody, these people said.

By that point, officials at the National Archives had been aggressively contacting people in Trump’s orbit to demand the return of documents they believed were covered by the Presidential Records Act, said two people familiar with those inquiries. Like the others, they spoke on the condition of anonymity to discuss details of the investigation.

Christina Bobb, a lawyer for Trump, said his lawyers engaged in discussions with the Justice Department this spring over materials held at Mar-a-Lago. At that time, the former president’s legal team searched through two to three dozen boxes in a storage area, hunting for documents that could be considered presidential records, and turned over several items that might meet the definition, she said.

In June, Bobb said, she and Trump lawyer Evan Corcoran met with Jay Bratt, the chief of the counterintelligence and export control section at the Justice Department, along with several investigators. Trump stopped by the meeting as it began, to greet the investigators, but was not interviewed. The lawyers showed the federal officials the boxes, and Bratt and the others spent some time looking through the material.

Bobb said the Justice Department officials commented that they did not believe the storage unit was properly secured, so Trump officials added a lock to the facility. When FBI agents searched the property Monday, Bobb added, they broke through the lock that had been added to the door.

The FBI removed about a dozen boxes that had been stored in the basement storage area, she said.

Bobb did not share the search warrant left by agents, but said that it indicated agents were investigating possible violations of laws dealing with the handling of classified material and the Presidential Records Act.

Trump aides also declined to share the search warrant with The Washington Post.

Cue the nutballs - and bring on the Keyboard Kommandos.

The Atlantic: (pay wall)

The Bad and Good News About Trump’s Violent Supporters

The FBI search at Mar-a-Lago prompts sincere talk of violence. But some threats remain mere threats.

In some corners of MAGA-land, a new civil war is getting under way. The FBI’s arrival at Mar-a-Lago yesterday evening to collect evidence in a criminal investigation related to former President Donald Trump is the trigger that some of his supporters needed to suggest that violence is imminent. Predictably, the unverified Twitter accounts of armchair revolutionaries circulated claims such as “I already bought my ammo” and dark talk of “kinetic civil war” and “Civil War 2.0.”

Not to be outdone, the National Rifle Association posted an image of Justice Clarence Thomas above an indignant quotation from a majority opinion he wrote: “The constitutional right to bear arms in public for self-defense is not ‘a second class right.’” Verified right-wing influencers got in on the martial rhetoric, too. “Tomorrow is war. Sleep well,” Steven Crowder promised.

The bad news is that much of this talk is sincere. It is intended to intimidate the people investigating Trump’s many abuses of power, and to galvanize and organize his true believers—some of whom already proved on January 6, 2021, that they will commit violence in his name. The latest such propaganda is shocking to read, mostly because the talk of violence comes so casually to Trump’s apologists. It is all out in the open now.

The good news is that some threats remain merely threats. A violent movement either grows or shrinks. Its ideology is not defeated; it simply stops motivating people to action.

David A. Graham: The Mar-a-Lago raid proves the U.S. isn’t a banana republic

Trump has a hold on a party that has been offered plenty of exit ramps from its relationship with him, but he is not Voldemort. He has been isolated and humiliated. Many of the individuals who used violence to support him on January 6 are now in jail. His audiences have dwindled. Even on the night of the FBI search, in the area of Florida that he now calls home, an impromptu roadside demonstration in support of him attracted “roughly two dozen” supporters, the Miami Herald reported. “Roughly two dozen” isn’t a revolution. It isn’t even a rally.

For many Americans who wish for a peaceful democracy and remain frustrated about Trump’s continuing influence in Republican primaries, hope springs eternal that someone or something—Robert Mueller, two impeachment drives, and now criminal investigators—will definitively erase his power. But expecting saviors to intervene is the wrong way to think about how the threat of violence from Trump’s supporters might dissipate. Rather, the danger will be over when violent MAGAism becomes a rallying cry for a limited pool of adherents whose online anger fizzles upon contact with the real world.

A win, at this stage, isn’t that Trump’s troops make an apology. It is that they remain an online threat, a cosplay movement, a pretend army that can’t deliver, whose greatest strength is in their heads rather than reality.

Trump, as a former president of the United States, may be a rather unique leader of a violent insurrection, but that doesn’t make the ongoing, multiyear strategy any less effective. The January 6 committee has adopted a counter-insurrection strategy by portraying Trump squarely as the leader of a violent movement, and not simply the leader of the GOP. But some of his more extreme followers are now turning on one another. Members of the Oath Keepers, for example, have spoken to FBI investigators about matters connected with the Capitol riot—a sign that at least some fear legal penalties more than they fear the consequences of breaking with Trump. If the former president’s legal jeopardy deepens, he will in all likelihood try to raise the level of agitation in the days ahead; he knows how to use language that incites followers to violence without giving them specific instruction.

But allow me at least a glimmer of optimism. “Sometime they’ll give a war and nobody will come,” the poet and author Carl Sandburg famously wrote. And the decline of MAGA looks something like that—just a smattering of people respond to the overheated rhetoric of Trump and his allies. If Trump’s supporters only end up cosplaying a civil war, that itself is a small victory.

Today's Brian

Brian Tyler Cohen

Yes - if the FBI can execute a lawful search warrant on an ex-POTUS because there's credible suspicion he's committed a crime, then the FBI could come to your house too - it there's credible suspicion you've committed a crime.

WTF are these idiots yammering about?

Today's Beau

Justin King - Beau Of The Fifth Column

Trump is making moves to distance himself from the more thoroughly toxic elements of his "loyal base".

Wink wink nudge nudge - ya gotta dial it back a little - you're scaring the straights.

We can watch for someone else to pick them up - someone who'll either take them on for himself, or will try to be a surrogate for Trump, delivering those votes to him anyway.

Very fine people.

Today's Brian

Bravo, Republicans. Bravo.

Brian Tyler Cohen - Trump's reprise?

More On The McCarthy Thing

Trump won't know how to react until he sees the numbers. ie: how is this little episode polling?

If the mob is cool with it or angry about it, then Trump will decide whether to amp them up and punish little Kevin, or play Trump-The-Merciful and reward him.

In the end, it doesn't matter what McCarthy says or doesn't say - it only matters that Trump gets another opportunity to be the subject of the conversation, and that the Press Poodles are putting it on the air.

Now if I could only figure out how not to be the kind of Press Poodle I accuse the Press Poodles of being ... how not to supply oxygen to a toxic life form by paying attention to it, knowing that it doesn't exist without media attention, but understanding that it can't be ignored ... fuck.

I get the feeling this is how Oncologists feel all the time.

Shit makes my head hurt.

CNN:

GOP Warns Of War

So fuckin' sick of the GOP trying to bluster their way out of being held to account for their actions by threatening political war - like that's not what we've got now?

Fuck 'em - follow the law.

BTW - notice how their "arguments" make the Republicans sound just like Putin when he tries to rationalize his invasion of Ukraine.

Straight out of The Abuser's Handbook

1. I did an unreasonable thing
2. You reacted in a reasonable way
3. I twist your reaction into justification for me to do some more unreasonable things
4. It's your own fault - you make me do this

The Hill:

Republicans warn Justice Department probe of Trump would trigger political war

Republican lawmakers are warning that any Department of Justice prosecution of former President Trump will turn into a political battle, setting a high bar for Attorney General Merrick Garland to act on an expected criminal referral from the House’s Jan. 6 committee.

The House select committee investigating the Jan. 6 attack on the Capitol previewed its likely referral to the Justice Department in a court filing made public last week and experts say the evidence assembled by House investigators would provide a strong impetus for prosecutors to act.

But Republican lawmakers and strategists warn that any federal prosecution of Trump will be accused of being politically motivated, boost Trump within the GOP and turn into a partisan food fight at a time when President Biden is pivoting to the center and trying to keep his 2020 campaign promise to unify the country.

Sen. Mike Braun (R-Ind.) said any criminal referral from the House “would probably have as much political taint on it as you can get.”

“To me it’s clearly politically driven,” he said.

Braun said Democrats are scrambling to change up the political narrative in response to Biden’s moribund job approval ratings and predicted launching a federal prosecution of Trump would be viewed along partisan lines.

“At least half the country would say it’s all politically motivated,” he said.

Sen. Thom Tillis (R-N.C.) said “the Department of Justice has a high bar” to clear before launching an investigation of Trump and raised concerns over the partisan fighting that surrounded the formation of the Jan. 6 committee.

Speaker Nancy Pelosi (D-Calif.) blocked House Minority Leader Kevin McCarthy’s (R-Calif.) picks to serve on the panel, Reps. Jim Jordan (R-Ohio) and Jim Banks (R-Ind.).

She instead tapped Reps. Adam Kinzinger (R-Ill.) and Liz Cheney (R-Wyo.), two outspoken critics of Trump’s election fraud claims, to participate in the Democratic-led investigation.

“I don’t mind looking into the events but I think that Speaker Pelosi did not do the process justice by the way the members were ultimately seated,” Tillis said. “It’s going to be perceived as political."

“Everybody is going to perceive the referral as a conviction on one side and they’re going to view it as the continuation of a witch hunt on the other side,” he added. “The bar that the House committee has is far lower than anything that would ultimately result in moving forward with a federal investigation and a conviction.”

Republican strategists close to Trump are predicting a battle royale if the Department of Justice moves to indict the former president."

“I think it could backfire in a way that they have no clue,” said Republican pollster Jim McLaughlin. “I think it’s going to backfire because it just so political and it’s tainted.

“The country wants to move on. Nobody is proud of what happened on Jan. 6 but people are like, ‘With all the problems we have going on in the country right now, this is going to be the focus of the Democrats?’ ”

Sen. Lindsey Graham (R-S.C.), a close Trump ally and senior member of the Senate Judiciary Committee, told The Hill Thursday any recommendation to prosecute from the House select committee would lack credibility.

“I don’t see anything coming out of this committee not tainted by politics,” he said.

The likelihood of a stirring up a major political storm with a federal investigation of Trump could serve as a powerful disincentive for the Justice Department moving forward if it receives a recommendation to prosecute from the Jan. 6 committee.

Biden privately told advisers after his victory in the 2020 election that he didn’t want his presidency consumed by investigations of Trump, NBC News reported at the time, citing five people familiar with the discussions.

A filing by lawyers for the Jan. 6 panel in a California federal court as part of its effort to obtain conservative lawyer and Trump adviser John Eastman’s emails is widely seen as a precursor to a criminal referral to the Justice Department later this year.

The lawyers wrote the committee has “a good-faith basis for concluding that the president and members of his campaign engaged in a criminal conspiracy to defraud the United States” by obstructing the counting of electoral votes during last year’s joint session of Congress.

Senate Democrats, even though they all voted last year to convict Trump on the impeachment charge of inciting the Jan. 6 insurrection, have been careful to avoid the appearance Garland is under political pressure to bring charges. They say the decision is up to Garland alone.

But some Democratic senators privately caution that Garland needs to win any case he brings against Trump. They worry that the former president would seize on an acquittal as complete vindication, much like he did after former special counsel Robert Mueller declined to bring charges after investigating allegations of collusion between Russian officials and the Trump campaign in 2016.

Albert Alschuler, a professor emeritus of law and criminology at the University of Chicago Law School, said the Department of Justice would appear to have a strong case against Trump based on the public evidence of his attempts to overturn the 2020 presidential election.

“It looks like a quite strong case for criminal prosecution, particularly conspiracy to defraud the United States and maybe obstruction of official proceedings charge,” he said. “I see a lot of comment and some people seem to be saying, ‘Well, it’s so hard because they have to prove that the defendant really was lying by projecting all these false claims, you have to prove that he actually did not believe them himself.’ "

“But it seems to me the evidence is pretty strong,” he added. “Juries infer intent from the circumstances all the time, and they infer a criminal intent beyond a reasonable doubt.”

Alschuler noted that multiple advisers including former Attorney General William Barr told Trump directly that his claims of widespread election fraud were untrue.

Barr discussed his conversations with Trump shortly after the 2020 election in a recent interview with NBC’s Lester Holt.

“I told him that all this stuff was bullshit about election fraud and, you know, it was wrong to be shoveling it out the way his team was,” Barr recounted. “He started asking me about different theories and I had the answers. I was able to tell him this is wrong because of this ... He obviously was getting very angry.”

Alschuler noted that Barr “was one of several people who did that.”

He pointed out that “with conspiracy to defraud what you have to show is knowledge is that what you’re saying is false.”

He said, however, that while the evidence against Trump appears to support a criminal prosecution, Garland may hesitate to pull the trigger because of the likely political backlash.

“Garland has said he will follow the evidence wherever it leads. If an overwhelming case is presented he may prosecute but I think he would probably prefer not to. That’s just a guess. Even if it’s a very strong case, I think they’re worried about the fact that we’re talking about prosecuting somebody who has millions and millions of devoted, passionate followers who would see this as a political prosecution and be very angry, possibly violent,” he said.

Republicans also warn that any federal prosecution of Trump would likely be answered by congressional investigations of Biden and his son Hunter if Republicans take over the House and possibly the Senate in the 2022 midterm elections.

Jan6 Stuff

So it looks like maybe kinda sorta there could possibly be potentially multiple violations of the National Security Act (at least - we think), and I guess the IG could take a look at it - whenever they get a minute and if it's not too much trouble. You know - maybe some time after lunch on about the fifth Wednesday next month?

While everybody's dithering around trying not to offend anyone's delicate sensibilities, Qult45 is still running loose, and still executing their plan for The Slow-n-Sloppy Coup.

And I get it - honest, I do - process is really really really important. But as always, the bad guys are playing in Smarmspace, where all the loopholes are, and manufacturing more on the fly - using all that process as cover for their ongoing criminally seditious fuckery. Enough already - it's time to stop trying to finesse this thing and start stompin' some ass.

Pick one thing where you've got a major player dead-to-rights, and rain The Furies down on his fuckin' head. 

Chris Jansing, MSNBC - The 11th Hour

Glenn Kirschner, with a calming update that kinda tamps down my rather ardent impatience:

"You think we're gonna let democracy lose? Ah, hell no." 

But I still think it's time to play a little smashball.

Unexpected Warriors

One of the important life lessons we should learn by the time we get about halfway through junior high school is that you don't fuck with librarians.

It would seem Mr Trump and his Qult45 devotees are getting a refresher.

18 US Code § 2071(B) willfully and unlawfully removing and destroying Presidential documents is punishable by 3 years in prison a fine and disqualification from serving in public office.

I'm tellin' ya - the people we take for granted as being meek and mild are the ones who'll step up and save our asses. Because that's how it's always been.

NYT: (pay wall)

‘The Bad-Ass Librarians of Timbuktu,’ by Joshua Hammer

A story of librarians in Mali standing up to asshole religion freaks who sought to keep the truth from a world that deserves to know that truth.

But anyway - to clear things up - there was no raid on Mar-A-Lago.

But c'mon - nobody's going to doubt the high probability that Trump would have to be forced to comply with the Presidential Records law, the same as we have to force him to follow every other law. Especially knowing about his habit of tearing up official notes of official White House meetings.

Besides the prospect of middle-aged women in comfortable shoes flashing their badges as they storm the storage lockers at Mar-A-Lago is pretty damned funny. I just can't help myself.

Palm Beach Daily News:

The National Archives last month obtained 15 boxes of presidential records that were being stored at former President Donald Trump's Mar-a-Lago Club.

Keeping the boxes of records at Mar-a-Lago violated the Presidential Records Act, which requires that the government keep all forms of documents and communications related to a president's or vice president's official duties.

"As required by the Presidential Records Act the records should have been transferred to NARA from the White House at the end of the Trump Administration in January 2021,” the National Archives and Records Administration said in a statement on Monday.

Today's Beau

Trump had 2 weeks to pardon those Jan6 assholes. He didn't.

And now he's getting a good look at the effects of "in politics, if you wanna friend, get a dog", as the people who needed him and used him for political gain are becoming more popular than him, and are now distancing themselves from him.

(we'll see how that goes - it's always been hard to wash off that Trump Stank)

 Justin King - Beau Of The Fifth Column

What Is A Cult Anyway?

David Pakman with Amanda Montell

A new one for me: "thought-terminating cliche"

Today's Tantrum

Let's just say the guy's bag is short a coupla marbles. And while we've known that for a long time now, it's always good to get a brisk and bracing refresher on it.

HuffPo, via Yahoo:

Donald Trump Has An Election Take That Democrats Would Probably Support

Trump’s statement followed a Georgia state judge dismissing a lawsuit alleging that officials in Fulton County, which includes Atlanta, had counted fraudulent ballots during last November’s election.

Still, Trump’s words may not be an empty threat, according to NBC News correspondent Sahil Kapur, who noted on Twitter that “the same fabricated claims of fraud arguably depressed GOP turnout in the Georgia runoffs and helped Democrats win the Senate.”

"Save America PAC" - SAP - there has never been anything more aptly named. Ever.

So confident in his bluster, he's sure that all he has to do is snap his fingers and the GOP disappears.

Please, Mr Trump - whatever you do, don't throw us into the briar patch.