11th Circuit Says a Judge Should Not Have Interfered With the FBI’s Review of the Mar-a-Lago Documents
Republicans who blast FBI’s Trump search are prepping to snag Joe in a Hunter Biden probe
“These days, Republicans are making no secret of their plans to use a Hunter Biden inquiry next year as a platform to go after his father — after years of brushing off conflicts of interest within Trump’s family. No evidence has emerged to show that the business dealings of Hunter Biden, who’s faced a years-long federal investigation, affected his father’s decisions as president.
GOP lawmakers are pushing ahead anyway, planning a sprawling probe that will reach into the ethics of Hunter Biden’s artwork sales and other business deals, as well as policy decisions by the Biden administration.”
The warrant authorizing the FBI search of Trump’s home is unsealed — and it’s alarming
“The documents indicate the warrant was issued to investigate potential violations of the Espionage Act. That act states, among other things, that an official entrusted with sensitive or classified information who allows it to be taken away from its secure location through “gross negligence” or who knows it’s been removed from safety and doesn’t tell federal officials can be fined or imprisoned for up to 10 years. They also suggest an inquiry into possible improper removal or destruction of federal records, and obstruction of a federal investigation.
The receipt suggests 11 sets of documents were recovered, including items related to French President Emmanuel Macron, handwritten notes, photos, and top-secret materials.”
Donald Trump’s Handling of Classified Material Looks Worse Than Hillary Clinton’s
“According to a search warrant inventory that was unsealed on Friday, the FBI found 11 sets of classified documents, ranging from “confidential” to “top secret,” when it searched former President Donald Trump’s Mar-a-Lago resort in Palm Beach last Monday. The top-secret documents included some that were labeled “SCI,” or “sensitive compartmented information,” an especially restricted category derived from intelligence sources.
On the face of it, Trump’s handling of this information, which he took with him from the White House when he left office in January 2021, raises national security concerns at least as serious as those raised by Hillary Clinton’s use of a private email server as secretary of state. Trump has long maintained that Clinton’s mishandling of classified material when she ran the State Department was egregious enough to justify sending her to prison. But in his case, he says, the documents at Mar-a-Lago, despite their labeling, were not actually classified.
How so? According to a statement that Trump representative John Solomon read on Fox News after the search warrant and inventory were unsealed, Trump had a “standing order” as president that automatically declassified material he moved from the Oval Office to his residence at the White House. That explanation raises additional questions about Trump’s seemingly cavalier treatment of sensitive information”
“In July 2016, when then–FBI Director James Comey announced that the FBI had not found enough evidence to justify criminal charges against Clinton, he reported that 110 messages in 52 unsecured email chains had been “determined by the owning agency to contain classified information at the time they were sent or received.” He said “eight of those chains contained information that was Top Secret at the time they were sent; 36 chains contained Secret information at the time; and eight contained Confidential information, which is the lowest level of classification.”
By comparison, the FBI’s list of items seized at Mar-a-Lago includes five mentions of “various” or “miscellaneous” top-secret documents, three mentions of “miscellaneous secret documents,” and three mentions of “confidential documents.” We don’t know how many documents were in each set or the precise nature of the information they discussed. But five sets of top-secret documents could easily contain more sensitive information than eight email chains that may have referred to top-secret material only briefly and/or in passing.
Comey said Clinton’s treatment of “very sensitive, highly classified information” was “extremely careless.” On its face, that judgment could support charges under 18 USC 793, which encompasses “gross negligence” in the handling of information “relating to the national defense”—a felony punishable by up to 10 years in prison. But Comey concluded that was not enough to justify prosecuting Clinton”
“Although there is evidence of potential violations of the statutes regarding the handling of classified information, our judgment is that no reasonable prosecutor would bring such a case….In looking back at our investigations into mishandling or removal of classified information, we cannot find a case that would support bringing criminal charges on these facts. All the cases prosecuted involved some combination of: clearly intentional and willful mishandling of classified information; or vast quantities of materials exposed in such a way as to support an inference of intentional misconduct; or indications of disloyalty to the United States; or efforts to obstruct justice.”
The Mar-a-Lago search warrant was based on U.S. Magistrate Judge Bruce Reinhart’s determination that there was probable cause to believe the FBI would find “items illegally possessed” in violation of three statutes, including 18 USC 793. Although Trump has not been charged with any crime and may never face prosecution, his conduct arguably included some of the aggravating factors that Comey mentioned.
To start with, there is some evidence to support the inference that Trump’s alleged mishandling of classified material was “intentional and willful.” In January, after the National Archives and Records Administration (NARA) raised concerns that Trump had improperly removed documents that were covered by the Presidential Records Act, Trump’s representatives turned over 15 boxes. Noticing that some of the documents were marked as classified, NARA referred the matter to the Justice Department, which obtained additional documents from Mar-a-Lago under a grand jury subpoena in June. Around the same time, The New York Times reports, “a Trump lawyer” gave the Justice Department “a written declaration” saying “all the material marked classified in the boxes had been turned over.”
Judging from what the FBI says it found last week, that was not true. The FBI presumably presented evidence to that effect, possibly based on a Trump insider’s tip, in its search warrant affidavit (which, unlike the warrant itself and the inventory, remains sealed). That apparent misrepresentation may help explain why the search warrant cites not only 18 USC 793 but also 18 USC 1519, which makes it a felony, punishable by up to 20 years in prison, to knowingly conceal “any record, document, or tangible object” with “the intent to impede, obstruct, or influence” a federal investigation. Such concealment, if proven, would qualify as “efforts to obstruct justice,” another aggravating factor that Comey mentioned.
Because the volume, contents, and exact location of the documents seized by the FBI are uncertain, it is not clear whether the records at Mar-a-Lago amounted to “vast quantities of materials exposed in such a way as to support an inference of intentional misconduct,” another Comey criterion. The difficulty of assessing that question underlines how little information we have about the documents that were seized.
“Here is where Trump’s defense comes in. “The very fact that these documents were present at Mar-a-Lago means they couldn’t have been classified,” his office says. “As we can all relate to, everyone ends up having to bring home their work from time to time. American presidents are no different. President Trump, in order to prepare for work the next day, often took documents including classified documents from the Oval Office to the residence.” In light of that practice, the statement says, Trump “had a standing order that documents removed from the Oval Office and taken into the residence were deemed to be declassified.” It notes that “the power to classify and declassify documents rests solely with the President of the United States.”
Without denying that point, Trump’s critics argue that such a policy would be highly irregular and careless. “Whatever POTUS’ ‘powers’ might be to declassify docs,” former FBI agent Asha Rangappa says on Twitter, “there are good policy and practical reasons…to follow a process, and for that process to be documented and reflected on the document markings themselves.”
Rangappa says “accountability” requires that declassification of a given document be justified by a rationale dealing with the national security implications, which “allows for objections from others if the reasoning is based on an incorrect premise.” She also cites the need to protect intelligence sources from “blowback.” In addition to “being dangerous and bad for [national security],” she says, automatic declassification of any documents that the president happens to remove from the Oval Office would cause “confusion and inefficiency and distortions in our intelligence collection, foreign policy, and defense efforts.”
If “Trump telepathically declassifies hundreds of docs on his way out,” Rangappa adds, President Joe Biden “can telepathically reclassify them immediately, too. See how stupid this gets? Markings would mean nothing. No one would know how to store things.”
Accepting Trump’s argument that any documents at Mar-a-Lago were ipso facto declassified, notwithstanding markings to the contrary, that information would be legally available not just to him but also to the general public, assuming there was no other statutory justification for restricting access. Unless classification decisions are utterly arbitrary or were clearly wrong with regard to every document that Trump retained, that seems like a pretty reckless way to handle sensitive material. But it would be of a piece with Trump’s behavior as president, which reportedly included tearing up and flushing documents that were supposed to be preserved under the Presidential Records Act.
The issues that critics like Rangappa raise go beyond the question of criminal liability. Let’s say Trump’s purported “standing order” means he is in the clear under 18 USC 793. Let’s also stipulate that meeting the mens rea requirements for convicting him of obstruction or “willfully” concealing documents that belonged in the National Archives would be a tall order. Trump’s behavior and excuses for it nevertheless provide further evidence, in case any was needed, that he is not the sort of person who can be trusted to hold any position of political power, let alone the presidency.
Back in 2016, when Trump was intent on making his opponent look bad, he claimed to be moved by the concerns of “long-term workers at the FBI,” who he said were “furious” that Clinton got off with a wrist slap for recklessly endangering national security. Now that the shoe is on the other foot, Trump dismisses the FBI’s avowed concerns as transparent excuses for the partisan “witch hunt” that supposedly has victimized him throughout his political career. One need not be a fan of the FBI to see that Trump’s view of what qualifies as shameful and disgraceful is based on no principle beyond his petty personal interests.”
The One Thing That Is Very Clear from the Search of Trump’s Home
“We need to remember that earlier this year officials retrieved boxes of materials from Mar-a-Lago that they said should have been turned over to the National Archives before Trump left office. According to reporting from CNN, investigators became aware of the existence of more such documents during a visit to Mar-a-Lago in June. But instead of simply taking these documents as officials had done previously, or subpoenaing Trump for the documents, investigators took the more serious step of requesting a search warrant. This suggests that officials at the Department of Justice did not think they would get all the documents in Trump’s possession if they filed a subpoena.
There is much we still don’t know about what the agents were looking for and what they found, but the process of applying for and receiving permission for the warrant indicates the significance of what happened Monday.
Typically, I would advise a client that an FBI search at your home means that you will likely face charges. That’s because a federal judge determined that there was good reason to believe a federal crime was committed and that evidence of the crime was in your home. To be clear, the execution of a search warrant doesn’t necessarily mean that the evidence points to the owner of the home as the person who committed the crime. It just usually works out that way.
To obtain the warrant, the DOJ had to present a detailed affidavit to a judge walking through the evidence they have that a crime was committed and providing some reason to believe evidence of that crime is at Mar-a-Lago right now. I emphasize “right now” because the government needs to show that there was probable cause to believe that evidence of the crime was present at Mar-a-Lago at the time of the search. It is extremely unlikely that a judge would approve a warrant based on stale evidence that had been received many months ago. The Justice Department also would act in the most conservative, cautious manner given the enormous stakes for the Department’s reputation and the nation as a whole.”
“The nature of the possible charges is also very unclear. Recent reporting from both the New York Times and the Associated Press indicates the search warrant is related to classified material taken from the White House by Trump when he left office. But we know that mishandling classified documents only rarely results in charges.
James Comey was right when he testified that the DOJ typically does not prosecute cases involving the mishandling of classified material unless that material was deliberately transferred to a third party. That suggests to me that there is something important — call it a plus factor — we don’t know here. People on the right have rushed to judgment and are already saying, “This is just a docs case.” But we don’t know that. In fact, there is reason to believe it is more than that.”
Facebook Is a Snitch
“”Social media has become a significant source of information for U.S. law enforcement and intelligence agencies,” the Brennan Center for Justice at NYU Law noted in a report released last week. “The Department of Homeland Security, the FBI, and the State Department are among the many federal agencies that routinely monitor social platforms, for purposes ranging from conducting investigations to identifying threats to screening travelers and immigrants.””
The FBI Returned This Innocent Couple’s Safe Deposit Box. It Refuses To Give Back Many Others—and Is Trying To Seize $85 Million in Cash.
“”Not only was my stuff taken without just cause…It was taken by my own government, and they were asking me to prove my innocence and subject myself to an investigation to get my stuff back, which was unlawfully taken to begin with, and had no evidentiary value.”
Perhaps most pitiful is that the Snitkos are two of the lucky ones in this story. That word feels ill-fitting for anyone in their shoes. But while the FBI has acquiesced to giving select deposit boxes back, including the one owned by the Snitkos, they are refusing to surrender others, seeking instead to keep a collective $85 million in cash and an unspecified amount of gold, silver, and precious metals from unsuspecting people.
That includes Travis May, who stored gold and $63,000 in cash, and Joseph Ruiz, who had $57,000 in his box—his life savings, which he uses to pay his living and medical expenses, according to a recently amended lawsuit.
“After the government seized this property on March 22, 2021, [Ruiz] filed a claim with the FBI to retrieve it,” notes the complaint from the Institute for Justice (IJ), a libertarian public interest law firm representing both men. “However, the government has informed attorneys for USPV that it intends to civilly forfeit Joseph’s property. At this time, the government has not provided Joseph with any notice of the purported civil forfeiture proceeding.””
“Should the government succeed, plaintiffs Jeni Verdon-Pearsons and Michael Storc, for instance, will forcibly donate their silver, though the suit notes that they, too, have not been provided with “the factual or legal basis for the purported civil forfeiture proceeding.””
Despite Its Own Warning That ‘Congress Itself Is the Target,’ the Capitol Police Did Not Expect Anything Like Last Month’s Riot
“The day before last month’s deadly riot at the U.S. Capitol, an FBI bulletin warned that some of President Donald Trump’s supporters were calling for violence to prevent Joe Biden, then the president-elect, from taking office. The bulletin cited “specific calls for violence” in an online discussion thread.
“Be ready to fight,” the thread said. “Congress needs to hear glass breaking, doors being kicked in, and blood from their BLM and Pantifa slave soldiers being spilled…. Get violent. Stop calling this a march, or rally, or a protest. Go there ready for war. We get our President or we die. NOTHING else will achieve this goal.”
The FBI shared that bulletin, which originated from its office in Norfolk, Virginia, with a joint terrorism task force that included representatives of the Capitol Police and D.C.’s Metropolitan Police Department (MPD). It was also posted on the Law Enforcement Enterprise Portal, which is accessible to law enforcement agencies across the country, and emailed to the MPD and the Capitol Police.”
“Acting MPD Chief Robert Contee said he never saw the FBI warning. The email account to which it was sent is not monitored “24 hours a day,” he said, and a message sent to that address would not “generate an immediate response.” He suggested that the FBI should have called him instead: “I would certainly think that something as violent as an insurrection in the Capitol would warrant, you know, a phone call or something.” Former Capitol Police Chief Steven Sund, who resigned after the riot, said he first heard about the FBI bulletin on Monday.
Contee and Sund blamed their inadequate preparation for the violence at the Capitol on a failure of intelligence.”
“That defense is complicated not just by the overlooked FBI bulletin but also by a January 3 Capitol Police intelligence report. “Due to the tense political environment following the 2020 election, the threat of disruptive actions or violence cannot be ruled out,” said the 12-page memo, parts of which were obtained by The Washington Post. “Supporters of the current president see January 6, 2021, as the last opportunity to overturn the results of the presidential election. This sense of desperation and disappointment may lead to more of an incentive to become violent. Unlike previous post-election protests, the targets of the pro-Trump supporters are not necessarily the counter-protesters as they were previously, but rather Congress itself is the target on the 6th.”
The memo noted “a worrisome call for protesters to come to these events armed” and “Stop the Steal’s propensity to attract white supremacists, militia members, and others who actively promote violence.” It said “there is the possibility that protesters may be inclined to become violent,” creating “a significantly dangerous situation for law enforcement and the general public alike.”
The Post says that memo “does not appear to have been shared widely with other law enforcement agencies, including the FBI.” Sund, who said he did not know about the FBI’s bulletin until the day before he testified, does not seem to have made much of an effort to keep the FBI apprised of his own agency’s assessment. He told the Post “it would be inappropriate to publicly discuss an internal intelligence memo, given its sensitive nature and the risk of revealing sources and methods.””
” While it can be difficult to distinguish between macho posturing and concrete plans of violence, the fact that some people who planned to attend the “Save America” rally were arguing that peaceful protest was inadequate to the occasion, combined with the clear warning that “Congress itself is the target,” should have prompted the people charged with protecting the Capitol to reevaluate their expectations.”
“Even while noting the possibility of violence, the Capitol Police minimized the danger. According to Sund, its January 4 daily intelligence report “assessed ‘the level of probability of acts of civil disobedience/arrests occurring based on current intelligence information’ as ‘remote’ to ‘improbable’ for all of the groups expected to demonstrate on Wednesday, January 6, 2021. In addition, the daily intelligence report indicated that ‘the Secretary of Homeland Security has not issued an elevated or imminent alert at this time.'””
An FBI investigation shows Ohio’s abysmal energy law was fueled by corruption
“The Ohio case, while extreme, is not an aberration. Corrupt electric utilities using ratepayer funds to roll back climate policy is not limited to Ohio. As I described in Short Circuiting Policy, it is an unfortunately common pattern.
Last week, the Illinois utility ComEd — whose parent company is Exelon — admitted to engaging in bribery and agreed to pay a $200 million fine. It’s very likely that another speaker, Michael Madigan, is involved in that case — the Illinois governor has already called on him to resign.
In Arizona, which I examine in my book, the FBI similarly launched an investigation into an elected official over its ties to a private electric utility, Arizona Public Service. As we now know, Arizona Corporation Commission Chair Gary Pierce met privately with then-Arizona Public Service CEO Don Brandt numerous times. The utility also funneled over $700,000 through a dark money group to Pierce’s son’s failed bid for secretary of state.
Arizona Public Service also secretly spent tens of millions on campaigns to elect its own regulators in order to secure favorable decisions, including clean energy rollbacks and generous rate hikes. In 2018 alone, it spent upward of $40 million to successfully block a clean energy ballot initiative. The new CEO, Jeff Guldner, played a key role in directing the utility’s dark political spending.
And this isn’t a new strategy. Throughout the 1990s, electric utilities including FirstEnergy and Arizona Public Service were key funders of climate denial.”
“The dogged folks at the Energy and Policy Institute — a utility watchdog that has turned up real-time facts in most of these cases — paint a clear picture for those paying attention: Most electric utilities are resisting the clean energy transition and using corruption to do it.”