☕️ Coffee & Covid ☙ Saturday, August 13, 2022 ☙ THE WARRANT 🦠
Everything you need to know about the now-unsealed Search Warrant in one place; a little monkeypox news; more Orwellian CDC revisions; and MTG tries to impeach Merrick Garland.
Good morning, C&C, it’s now Day Five of Biden Raid week. Today’s roundup includes a little monkeypox news; more Orwellian CDC revisions; MTG tries to impeach Garland; and everything you need to know this morning about the now unsealed Search Warrant.
🗞*COVID NEWS AND COMMENTARY* 🗞
🔥 CBS Pittsburgh ran a story this week headlined, “UPMC Children’s Hospital Employee Diagnosed With Monkeypox.” The article blandly warns that “the virus is spread when someone comes in contact with the sores, scabs or body fluids of an infected person.” That’s it.
A CHILDREN’S HOSPITAL employee got monkeypox somehow. Is it biased somehow to wonder if that person should be working with kids or maybe better off in a regular hospital or something? It’s so complicated these days.
💉 The CDC quietly redacted another one of its original core promises about the jabs sometime between July 16th and July 22nd, when it removed the statement from its website that the jabs’ mRNA payload is quickly cleared from the body.
Here’s a side-by-side comparison, before and after:
There’s still a link to a third-party website about the topic at the bottom of the CDC’s web page that asks “How Long do mRNA and Spike Proteins Last in the Body?”
But when you click on the link, a popup says, “CDC cannot attest to the accuracy of a non-federal website.” Oh. Never mind then.
Jab-takers: you feeling gypped yet?
🔥 Controversial House Representative Marjorie Taylor Green (R-Ga) announced yesterday that she was filing articles of impeachment against Merrick Garland. So there. It’s going nowhere, of course, but if she can get it to a vote it might make a few people uncomfortable. Good luck, Marjorie!
🔥 The Biden Raid Roundup.
🔎 Yesterday, the Court unsealed the Biden Raid search warrant and the FBI’s inventory. As I predicted would happen, the new documents provided very little new information, and now everyone wants the affidavit.
Remember, nobody except the FBI and the Magistrate have seen the search warrant affidavit at this point. It was NOT provided to Trump or anyone on his team; they’d be the last people to get a copy, and it was not unsealed in the case.
Judicial Watch and several corporate media outlets, including The New York Times, have asked the Court to unseal ALL warrant materials, including the affidavit, “as expeditiously as possible.” The Court ordered the DOJ to respond to those requests by this Monday, August 15th. Obviously the DOJ will oppose unsealing the affidavit, or they’d have already agreed to its unsealing.
My guess is DOJ will cite “sources and methods” as its justification for keeping the affidavit under seal, because that’s what law enforcement always says, and it’s so murky and ambiguous that it’s almost impossible to argue against. Law enforcement always says, “judge, if we reveal our sources it will hurt the investigation, we obviously can’t tell you who the sources are or even confirm whether they exist or not, and it’s not good enough to just redact their name from the affidavit because someone can still guess their identity from the context.”
How do you argue with that?
A betting man would place his bitcoins on Magistrate Reinhart’s keeping the search warrant affidavit sealed, which will further inflame everybody and fuel all the wild conspiracy theories currently circulating social media.
🔎 We can glean a few scraps of information from the search warrant and the inventory, scraps which are currently energizing intense speculation and crazy hot takes that are popping like fireworks on all sides of the issue. Let’s try to focus on what we know for sure.
First, the Washington Post lied yesterday when it reported “two anonymous sources” confirmed the DOJ was looking for nuclear secrets. There is NOTHING in the search warrant about nuclear secrets. Not even close. But WaPo planted the seeds of that idea, and although you won’t see it again in corporate media, it will be forever sprouting fanatical fruit on Twitter.
For example, bizarre fanatics like United States Air Force General and former CIA Director Michael Hayden, who gleefully suggested on Twitter yesterday that Trump get should the death penalty for … something.
Michael Beschloss @BeschlossDCRosenbergs were convicted for giving U.S. nuclear secrets to Moscow, and were executed June 1953: https://t.co/0Ox1JXoNDf
For context, Hayden was one of the former intelligence actors who lied by signing that public letter affirming that Hunter Biden’s laptop was Russian disinformation. So.
Anyway, the search warrant included a list of the types of documents the DOJ was allowed to take, and that list must have come straight from the search warrant affidavit. The Court didn’t just make it all up. That’s the DOJ’s list, and guess what? The word “nuclear” appears nowhere on it, even if you squint really, really hard, like Joe Biden trying to read the teleprompter.
The search warrant was signed on Friday, August 5th, but the raid happened three days later on Monday, August 8th. Why the delay? It sure suggests a lack of urgency — the FBI agents didn’t want to work on the weekend — which undermines the narrative that the FBI needed the surprise raid to prevent documents from being moved or destroyed.
Next, the inventory was signed by Christina Bobb, Trump’s onsite lawyer, and FBI Special Agent Jeremy Linton:
Special Agent Linton has been a busy little beaver. He has also been heavily involved in the January 6th prosecutions, including drafting supporting affidavits. What a crazy coincidence!
It’s so nice that Special Agent Linton could take time out of his busy day of locking up insurrectionists to handle this whole Biden Raid deal. If you guys MADE me bet, I would bet Special Agent Linton will turn out to be the very same dedicated public servant who signed the still-sealed search warrant affidavit that allegedly establishes probable cause for the Mar-a-Lago raid.
Who wants to bet?
Next, out of four categories of listed documents — labeled ‘a’ through ‘d’ — the search warrant allowed the FBI to retrieve literally ANY GOVERNMENT DOCUMENT CREATED DURING TRUMP’S TERM IN OFFICE. Classified or unclassified. No matter how ordinary or banal. I am not making that up:
Now we understand why there were so many boxes removed after the raid. They cleaned Trump out of ANY document related to his presidency in ANY way. So much for the fierce urgency of retrieving the nuclear codes or whatever. Under this search warrant, they would even seize leftover cocktail napkins stamped with the presidential emblem.
It is baffling why the federal magistrate, considering a history-making, Rubicon-crossing request, would have signed off on a search that was this over-broad, and not required the FBI to have been very, very specific about what they were looking for, and not let them clean out a former President’s entire library and root through his wife’s underwear drawer.
But remember, even before signing the warrant, Magistrate Bruce Reinhart ALREADY had an irresolvable appearance of bias or conflict due to his rabid anti-Trump Facebook posts and his self-recusal from Trump v. Clinton just a few weeks before.
Give how things look, Magistrate Reinhart should probably have passed on this warrant request and let another judge handle it. Here is what the commentary to the Florida Supreme Court’s Judicial Ethics Canon 2A unremarkably says:
Canon 2A. Irresponsible or improper conduct by judges erodes public confidence in the judiciary. A judge must avoid all impropriety and appearance of impropriety. A judge must expect to be the subject of constant public scrutiny. A judge must therefore accept restrictions on the judge’s conduct that might be viewed as burdensome by the ordinary citizen and should do so freely and willingly… The prohibition against behaving with impropriety or the appearance of impropriety applies to both the professional and personal conduct of a judge.
There’s a lot I could say about that canon of judicial ethics and this particular situation, but I’ll leave it there.
Now let’s look at the “serious crimes” that were recited in the search warrant’s as its predicate for the raid.
🔎 The search warrant cited three federal statutes as the basis for the search: 18 USC § 793, 1519, and 2017.
18 USC § 793 is titled “Gathering, transmitting or losing defense information,” and provides for fines and imprisonment up to ten years. It prohibits “communicating, transmitting, or delivering to any person not entitled to receive ‘any document, writing, … or note relating to the national defense,’ or attempting to do so.”
Coincidentally, § 793, also called the “Espionage Act,” is the same statute Hillary Clinton violated, but was never charged. On July 5th, 2016, then FBI Director James Comey terminated the FBI’s investigation of Hilary Clinton’s abuse of classified defense documents on her secret illegal home email server, and said, “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.”
Seems totally fair.
18 USC § 1519 is titled “Destruction, alteration, or falsification of records in Federal investigations and bankruptcy,” and provides for fines and imprisonment up to twenty years. It criminalizes the removal of “any record, proceeding, map, book, paper, document, or other thing, filed or deposited with any clerk or officer of any court of the United States, or in any public office. . .”
18 USC § 2071 is titled “Concealment, removal, or mutilation generally.” It provides for three years imprisonment and — significantly — a bar on holding any public office: a violator “shall forfeit his office and be disqualified from holding any office under the United States.” The statute prohibits destruction of “any record, document, or tangible object with the intent to impede, obstruct, or influence the investigation or proper administration of any matter within the jurisdiction of any department or agency of the United States.”
Destruction is quite a stretch here, since the documents are now in boxes held by the FBI someplace, but you can see how some folks are salivating over the potential ban on holding office. Most constitutional scholars think that ban is unenforceable against a presidential run, because the Constitution describes the qualifications for office and those can’t be changed without a Constitutional amendment.
So, among these scraps and details we can start to see the outlines of Merrick Garland’s plan. Absent Trump engaging in some kind of spying arrangement or involving foreign actors or something, these document violations are all just process crimes, or what we call “gotcha charges.” All three statutes could apply to any commonplace act of any President retaining documents after he leaves office even without any further criminal intent or act.
The FBI will be fly-specking those banker’s boxes of Trump documents to see if they can find one single document that trigger criminal liability under one of those statutes, and Trump won’t get the benefit of the Hilary treatment. They’ll push the charges against Trump.
But does it hold water?
🔎 Hardly. First, it is unclear how the relative handful of documents Trump retained from his Presidency are any different from the documents that ALL Presidents keep. For example, Barack Obama kept THIRTY THREE MILLION documents for his “presidential library.”
It’s true that just because Obama also did something doesn’t make it right for Trump to break the law, if that’s what happened. But it sure raises some serious questions about selective enforcement.
Next, what about the argument that Republicans were all-in for Hilary to be charged and locked up for her email server, but now want to cry that it’s unfair to prosecute Trump for removing classified documents? The simple answer is there’s a vast difference between Hilary Clinton and Donald Trump — Trump was President at the time; Hilary only wished she was president at the time.
Why is that different? First, there’s an ocean of difference between their conduct. Hilary used an illegal and unsecure server that exposed classified information to our enemies, with the criminal intent of defeating FOIA laws. Trump did what every single President in living memory always does, retained a few important documents relating to his presidency.
But that’s not all. Even if you can allege that Trump deliberately took highly classified documents, he still had every right to do it under the law. As President, Trump had unilateral power to declassify anything he wanted. While over the years the Legislature has tried to limit WHAT presidents can declassify and has tried to say HOW they have to do it, the Constitution doesn’t give the Legislative Branch those powers over the Executive.
The issue isn’t even new. In Deptartment of the Navy v. Egan (1987), the Supreme Court recognized the President alone has the constitutional power as commander-in-chief to classify and declassify:
The President, after all, is the “Commander in Chief of the Army and Navy of the United States.” U.S. Const., Art. II, § 2. His authority to classify and control access to information bearing on national security and to determine whether an individual is sufficiently trustworthy to occupy a position in the Executive Branch that will give that person access to such information flows primarily from this constitutional investment of power in the President and exists quite apart from any explicit congressional grant… The authority to protect such information falls on the President as head of the Executive Branch and as Commander in Chief.
Over the next few paragraphs, the Supreme Court explained that agencies like the NIA and CIA get their powers to classify or declassify documents FROM THE PRESIDENT. It’s not the other way around. The President holds those powers and delegates them to the agency heads. The agency heads don’t control the President’s classification powers.
As an important example of this Presidential power, Obama’s 2009 Executive Order No. 13526 declared a stringent declassification process for all federal officials and agencies, but it explicitly exempted two officials from the procedures: the sitting president and the vice president.
So, whereas is would have been fair game to charge Hilary with violating the laws related to handling classified documents, President Trump is in a whole different — and special — category. The President is the SOURCE of classification powers. He is not subject to the Legislature’s rules about how classified documents can be declassified. He doesn’t need to ask the FBI for permission to de-classify something, as has been widely suggested.
On the other hand, Hilary wasn’t the President and did not enjoy the President’s special status.
If Old Lady Garland had bothered to ask the DOJ’s Office of Legal Counsel for a memo, as is customary, they would have almost certainly told him that pushing this issue is NOT on firm legal ground, but rather just tees up a Constitutional crisis. Those aren’t the raw materials from which solid criminal prosecutions against former presidents are made.
This case is a head-scratcher. The lack of any reasonable explanation for the raid is pouring gasoline on all the conspiracy theories of both sides. The Left is convinced that the FBI must have something REALLY damning, like a deal to sell nuclear secrets to Putin, otherwise none of it makes sense. The Right thinks that the FBI was really after documents about Russiagate that could put a lot of FBI agents and public officials in jail forever, or even that Biden is trying to prompt furious conservatives into creating a January 6th-style pretext for Martial Law or something.
Who knows? I will keep trying to focus on what we DO know and the reasonable inferences we can draw therefrom. You can find all that other speculative stuff on Twitter whenever you want. Enjoy!
Have a super fantastic Saturday, and I’ll see you on Monday morning to kick the week off right.
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