What is a "personal record" under the Presidential Records Act? The definition in the act is relatively short and simple, so here's the entire, unabridged text:
(3) The term "personal records" means all documentary materials, or any reasonably segregable portion thereof, of a purely private or nonpublic character which do not relate to or have an effect upon the carrying out of the constitutional, statutory, or other official or ceremonial duties of the President. Such term includes—
(A) diaries, journals, or other personal notes serving as the functional equivalent of a diary or journal which are not prepared or utilized for, or circulated or communicated in the course of, transacting Government business;
(B) materials relating to private political associations, and having no relation to or direct effect upon the carrying out of constitutional, statutory, or other official or ceremonial duties of the President; and
(C) materials relating exclusively to the President’s own election to the office of the Presidency; and materials directly relating to the election of a particular individual or individuals to Federal, State, or local office, which have no relation to or direct effect upon the carrying out of constitutional, statutory, or other official or ceremonial duties of the President.
This isn't complicated. Personal records are things that have no relation to official presidential business. Period. There's nothing more to it.
Donald Trump has claimed that the president has sole and unreviewable authority to decide if a record is personal. You don't need to be a lawyer to see that the PRA says no such thing. It says only that materials should be designated as personal "upon their creation" and then "filed separately." There's nothing about the president's decision being absolute or about declaring records to be personal after leaving office. What's more, the PRA doesn't cover classified records at all.
Why the history lesson? Because today judge Aileen Cannon, who's presiding over Trump's classified documents case, issued a bizarre order asking lawyers for both sides to submit hypothetical sets of jury instructions. One set has to assume the jury decides, as a matter of fact, which records are personal. The second set has to assume that if the president says they're personal, that's it. They're personal.
What is possibly the point of this? The second scenario is entirely groundless and accomplishes nothing except to chew up the lawyers' time. So is that all this is? An amateurish attempt to once again delay things? It makes no sense as anything else.
I'm just wondering when the VERY smart lawyers in Jack "You Can't Pronounce The Original Klingon" Smith's office are going to decide that one of her dimwit moves, or a collection of them, is enough to tip the balance at the 11CA and have the case reassigned. She's already got a strike against her, and while this sort of BS probably isn't reviewable, there's gotta be some way for it to be part of the picture if/when they eventually pull the trigger.
Well said and good question. I wonder if donnie's "bloodshed" remarks are to deter, among other issues, an appeal to reassign Cannon.
Sorry if I'm missing something obvious, but why would his bloodbath comment deter an appeal to get Cannon off case?
Both the prosecutors and the judges involved have good reasons to suspect that their blood will be part of the ""bloodpath" if they cross him "too much".
I see. Thanks. The threat works. Well, I hope the Iron Man Prosecutor has something other than blood in his veins! But what an outrageous situation (in Russia, in Maga-ville [just have to make sure its boundaries never eclipse those of this mixed-up country of ours, or even come any closer]).
You can bet your last dollar they are already in the crosshairs. The judge in the Willis Wade case has had to get protection for himself and his young family.
Anyone taking on one of these cases on the side opposing Trump knows they are putting their lives in danger. That is why Willis asked Wade. Others had already turned her down because of the danger and cut in pay
Judge Cannon's behavior is easy to explain: she's a true believer MAGAt.
OR she's a careful career-climber, in which case there's a much greater chance that she'll (1) keep her distance and (2) walk away from protecting Trump, IF she starts thinking she won't benefit personally any further.
And ok arguably that's very MAGAt behavior, but it's different from the cultists.
Career climber? As a lifetime-appointed Article III judge, she's at nearly the top rung. Only the Supreme Court is higher. She's actually fixed for life, and there is literally no way for her to blow it, as long as there are at least 40 Republicans in the Senate.
The federal circuit is next up, and SCOTUS above that.
Judge Cannon's behavior is exasperating. But you have to admit, the concept of Donald Trump keeping a personal journal is pretty amusing.
She's been balancing the line between being an inexperienced, barely competent judge and a judge who is prejudicially biased.
Like!
Yes, and I think laughing up the sleeves of her robe at the frustration she's giving the prosecutors.
The central defendant's status means that every case he's involved in is without precedent, so absolutely every niggling little point in the federal cases can be contested as if it was a real issue of real substance, and not even a no-nonsense judge like Chutkan can bat these things away like they deserve to be.
Add to that what looks like Cannon's default starting position that she should assume every prosecution move is a bad-faith abuse of government power and/or political persecution, and with this particular case there's just no end of delays that an inventive defense team with a desperate client and working with a dilatory judge can dream up. She doesn't have to be in explicit cahoots with the defense lawyers, but she might as well be.
To me she really looks like she's goading the prosecution to try getting her thrown off, and at the same time trying to stay just enough on this side of completely ridiculous that it would be a stretch for the circuit to remove the case when and if they get that appeal. IMO she wants to keep the case and drag it out until jeopardy attaches, and at that point she can throw it out on some non-appealable grounds.
Hope she doesn't expect any thanks from trump, though, because ETTD, as we all know, and she isn't important enough to be an exception.
She is delaying until the election. If Trump “wins” and is “President” she can safely throw the case out or just wait until it is withdrawn. If Biden remains president she can safely allow it to proceed. Her reward will be a seat on the Supreme Court which will just be a rubber stamp for Trump’s destruction of the constitution.
Her bias and inexperience are obvious to anyone not in the cult.
Cannon is determined to find a way to dismiss this case. Smith has to be very aware of that and make sure he challenges her in the 11th circuit before a trial actually begins and a jury is sworn in. At that point, a dismissal can't be appealed.
and i'm guessing the clock restarts at that point so she still gets what she wants
No; if she dismisses after impanelment, double jeopardy applies, so unless her reason is reviewable -- and iirc something as simple as "insufficient evidence to take to the jury" is NOT reviewable -- then that's it, game over.
I think lower-case is referring to what happens to the pre-trial process after Smith is successful in getting Cannon dismissed from the case.
I don't think it resets the clock. They probably just pick up where they are, unfinished business and all.
ah ok. in which case I guess some delay would be acceptable for a new judge to get up to speed, although I suppose things like discovery could continue in the background.
If ever there has been a public lesson in "you get as much justice as you can buy," this would be it.
It makes perfect sense for a judge who had never tried a single case before becoming a judge. Her only qualification is being a member of the Federalist Society.
There really is no dispute and no legal theory in which Trump can keep whatever he wants. I understand 'due process' and such, but I don't see why they need a 3-4 month shedule to hear and decide an appeal baed on bullshit.
I don’t see the point of the second set of instructions. If the records are “personal” how is there even a case?
Right? Why would you prosecute if it was perfectly legal? Smith should just write "Inapplicable" for the second set of instructions.
Does she expect the jury to go through each page of every document and sign off on it?
So are you calling for Biden to be prosecuted for unreasonable interpretations of law...anything from illegal student loan forgiveness to supplying Israel with arms to border policy, etc, etc? Is a special prosecutor really the way to go?
I thought Obama's DOJ might prosecute war crimes during the previous administration, but they did not. And now, holding on to a file is criminal?
Weird.
Had the documents been personal records the National Archives would not have known they were missing. It is precisely because they were prepared for use in conducting official duties that their existence could be independently established. This is especially true for classified material, which is controlled and tracked. It really isn’t subject to argument or interpretation.
As a person who's had a security clearance, I can assure you that holding on to a file you're not supposed to is a crime under numerous statutes.
especially if they tell you they know you have sci-level docs and you refuse to give them back
guys in raybans and black suv's would be knocking on your door at 4am asking if you'd like to maybe have a leisurely cup of coffee with them and a couple friends on base
Ahhhh, American Exceptionalism™.
We might not have the best bananas, but we sure do have a lot of them.
Thank you for the laugh.
Like many things in the Trump era something terrible has happened to our legal system. Like many areas it’s all about money; politics; and influence. Laws apparently have little importance, if you have money.
There's a maxim that the law is what judges say it is, not necessarily what's written. Cannon obviously takes that idea to heart. In her courtroom, the world begins anew every day.
FWIW On his social media, Trump repeatedly, and in ALL CAPS, says the PRA gives him complete freedom to do what he wants with any scrap of paper. Cannon is inserting that perspective into court proceedings.
It's on the same level as accepting Trump's logically fallacious Denying the Antecedent*, where the claim is, because you can prosecute after successful impeachment/conviction, therefore you cannot prosecute is there was no successful impeachment/conviction. Which amazingly enough went up to the appeals court, where it was rejected. That the legal system allows his nonsense to take place is a black mark on its reputation.
* if it rains, I will carry an umbrella, therefore if I don't carry an umbrella, it will not rain.
+1
Donald Trump can do whatever he damn well pleases. Trump and his storm troopers have won already. No one will be able to stop them. The 2024 elections will be chaos and left undecided (assuming Trump doesn't clearly win) leaving the House to install Trump. Speaker Johnson will not swear in any democrats due to contested elections results. Biden will do nothing to stop him. Trump friendly courts will get the message and support him. The voting public largely doesn't care. It's hilarious! And a quite creepy. Good luck!
Who should we blame? The genocidal Israelis and their supporters? The terrorists Hamas and their supporters? Transgender / non-binary kids? They are doomed. The bullies will be enabled. Liberals who love "illegal immigrants"? That's got to be at the top of the list. It's funny that so many LatinX (lol) are supporting Trump. Why do we assume immigrants are liberal? They aren't.
There just aren't enough live and let live liberals out there to make a difference. Too many busy body liberals. I hope they are enjoying their righteous indignation over Gaza (both sides!) It's gonna extract a big cost later this year. Oops.
"Speaker Johnson will not swear in any democrats due to contested elections results"
Speaker Johnson stops being Speaker Johnson on January 3, 2025 no matter what happens in the election. The only way he stays Speaker beyond that is if Republicans win the House, which as of right now is far from certain.
👍👍👍👍👍
What happens if, in the wake of the elections, the House’s election-denying Republicans find that they can retain their majority in the next Congress only by denying certification of Democratic candidates who have won by close margins, and do so?
Then, on January 6, 2025, what if the new Republican majority refuses to certify as president any Electoral College results from states that went for Biden by close margins — thereby ensuring that no candidate receives an Electoral College majority?
Presto! The decision about who’s to be the next president is made on a state-by-state delegation vote — almost surely delivering it to Trump.
https://www.commondreams.org/opinion/if-gop-refuse-to-certify-election-in-2024
"What happens if, in the wake of the elections, the House’s election-denying Republicans find that they can retain their majority in the next Congress only by denying certification of Democratic candidates who have won by close margins, and do so?"
On Jan 3 There is no Congress to deny anything. There is no Speaker, there is absolutely nothing Congress can do until the new Congress is sworn in. They don't have the capacity to certify their own elections.
If Republicans win a majority, then yes, your worse case scenario could in theory happen. But if on the flip side, Democrats win the majority (and this will be known before Jan 3, no matter what any idiot, rabble rouser, or psychotic Republican may think), then the new Congress' first order of business will be to elect a new Speaker, who will then swear in all new incoming members of Congress.
If Democrats take the House (which right now seems likely), there is absolutely nothing Mike Johnson or any other Republican can do to mess around with the certification of the Presidential election.
Yes, thank you. I'm guessing all three of us are old enough to remember way, way back to when McCarthy got deposed? With no speaker, the House was run by the clerk, whose sole business at that point was to oversee electing a speaker. That's how it is when a new House shows up in odd-year Januaries, except at those times the House doesn't have any rules yet either-- getting them adopted is one of the first things a new speaker has to do.
Essentially, Congress starts over from scratch every two years (the one starting in 2025 will be officially "the 119th Congress"). For the Rs to do what Justin foresees, they'd have to start out with a majority.
I'm not saying that's impossible, and I'm not saying they might not try to waylay a bunch of Ds on their way to DC in order to create an artificial majority on the floor on January 3rd, and/or prevent Ds' elections from being certified in the states by legal or extralegal action. But if they're able to organize kidnapping and couping on that scale, the chaos in Congress will be just a small version of greater chaos in the country.
Not to impose on this thread and conversation....but!
Note to all of ourselves:
Call our congressional representative to make sure that they have signed the discharge petition for Aid to Ukraine.
For example, it seems odd to me that Katie Porter of Orange County, California, has not signed. She is not my Congressperson but I still intend to call her office tomorrow as well as Adam Schiff's .
We should all make this extra effort because apparently the open window for the discharge petition is only this Tuesday, Wednesday, and Thursday this week.
We should all make the maximum effort to see that the discharge petition is signed to bring the vote to the floor of the full house, where it will undoubtedly pass if it simply is given an honest & open vote.
For easier access t o your congress person, see also here.
https://twitter.com/_Alexander_R__/status/1769910673306276305/photo/1
You will feel better about yourself after you make t his call. Please do it.
Best Wishes, Traveller
Judge MAGA Lickspittle, as I like to accurately call her, will probably settle on a June or July trial day. In 2030
Cannon's a hack clown who's just trying to delay things and gum up the process just enough where Trump probably won't be held accountable in our lifetimes, but not so much that she gets removed from the case. There's no way in any currently-valid frame of reality that the PSA allows the president to retain classified government records as though they were personal effects. That's essentially what the brouhaha over Joe Biden's notebooks was: he had notes and diaries, some of which mentioned meetings and conversations where classified issues were discussed, which is a gray area, but they were clearly his notes, not government papers. Trump stole highly classified material and then obstructed justice when he was asked to return it. There is no gray area here. There is no legal needle to thread. He stole classified documents and then handled them in a way that clearly put national security at risk. Anyone else would already be sitting in prison facing a multi-decade sentence.
This! Those issues need to be publicized as much as possible.
Yes!
Citing Precedent, the papers are private!!!!!
L'État, c'est moi ("I am the state", lit. "the state, that is me") is an apocryphal saying attributed to Louis XIV, King of France and Navarre. It was allegedly said on 13 April 1655 before the Parlement of Paris.
It's a cry for help. Judge Cannon is begging to be removed from the case. She doesn't like the limelight, the hate, the threats. She's concerned about the attacks on her "competence" and "intelligence". She doesn't like the way the cool lawyers and judges won't sit with her in the lunch room anymore. She wants out.
If she wants out she can always recuse herself. She is there because she feels it is her duty to do anything she can to protect her leader, laws be damned. She is just trying to do so in a way that has at least a smidgen of plausible deniability for her actions.
"What is possibly the point of this? [fill in the blank] It makes no sense as anything else."
Here's how I fill in the blank:
Nothing, absolutely nothing makes sense absent an understanding of what interest is being served. Everything, absolutely everything makes perfect sense in a context in which the interest being served has been accurately understood.
Even the idea that most people choose to ignore that self-evident truth makes perfect sense. Most people don't want to think about what interest is being served because they don't want to admit to themselves when they're just being selfish. What they don't take into account is the self-evident consequence of selfishness, which is that it enables the selfishness of President Biden's predecessor and his ardent supporters, like Judge Aileen.
The definition of self-evident is, “Evident to one’s self and to nobody else.” - Ambrose Bierce
I genuinely don't understand how a judge who was appointed to her position by the defendant would not automatically be recused. How did Smith's team not insist on her recusal on the day she was assigned to the case?
IANAL, but, good question.
Wait -- Cannon is ordering the prosecution to write jury instructions from the point of view that they have already lost the case? That just seems wrong on the face of it.
Like a defense lawyer on a murder case ordered to write compelling hypothetical jury instructions as if the accused is definitely guilty." In effect Cannon is requiring lawyers to make an argument for the other side. This has gotta be illegal.
Seems to me that this would certainly be sufficient to ask the appeals court to have her removed. I'm no lawyer but I'm pretty sure this is not the kind of thing you ask a jury to determine. Since when do litigants submit alternative theories on what instructions a judge should give to a jury?
This is so obviously just to delay trial.
i'm also getting tired of the 'inexperienced judge' schtick put out by the press
none of this is because she's an inexperienced judge; she's obviously getting guidance from her handlers at the federalist society to maximize the fuckery on trump's behalf
This may provide the answer:
Essentially she is giving the prosecution a choice, let the jury determine if something is a personal record, thus exposing classified information, or accept that the docs are, thus there is no case. If I missed this in someone's comment, sorry.
https://www.dailykos.com/stories/2024/3/19/2230431/-Did-Judge-Cannon-Essentially-Commit-Graymail
They don't have to do that since they can establish the provenance of the documents w/o disclosing them to the jury. If the provenance is any of the agencies or any of the offices in the Executive Office of the President, they are automatically Federal records or Presidential records respectively.
Good to know, even as a lawyer, I know nothing about this, but the move sounded plausible, especially since the idea seems to have come from Trump's lawyers