FBI Deceit at Mar-a-Lago
Justice Department Opposes Any Special Master and Alleges That “Obstructive Conduct Occurred” at Mar-a-Lago
Last night, Department of Justice Tuesday filed in opposition to the appointment of a Special Master in Florida. It used the filing to add new facts and allegations to the public record, including the statement that “obstructive conduct occurred” at Mar-a-Lago by concealing or moving documents. The Department makes many of the same claims that it used to opposed the release of a redacted affidavit, claims shown to have been misleading and exaggerated after the magistrate ordered the release. Notably, this filing contained details that were likely redacted in the affidavit but just released on the public record.
In the most direct challenge to the former President’s public claims, the Justice Department claimed that he and his staff had failed to turn over classified material and that the Department had no choice but to search areas outside of the storage room. Indeed, it says that it found three classified documents in Trump’s desk without indicating the level of classification or subject matter.
It also said that the Trump staff barred the FBI from looking at documents in the storage room after turning over classified information to them.
“As the former President’s filing indicates, the FBI agents and DOJ attorney were permitted to visit the storage room. See D.E. 1 at 5-6. Critically, however, the former President’s counsel explicitly prohibited government personnel from opening or looking inside any of the boxes that remained in the storage room, giving no opportunity for the government to confirm that no documents with classification markings remained.”
The filing also adds new disclosures on past claims of declassification by Trump. It states that “[w]hen producing the Fifteen Boxes, the former President never asserted executive privilege over any of the documents nor claimed that any of the documents in the boxes containing classification markings had been declassified.” That was in January 2022. It then alleges that, in the June 3, 2022 meeting, “neither counsel nor the custodian asserted that the former President had declassified the documents or asserted any claim of executive privilege.” It is not clear if or when the Trump team made the declassification claim.
The filing also includes this notable allegation:
“The government also developed evidence that government records were likely concealed and removed from the Storage Room and that efforts were likely taken to obstruct the government’s investigation.”
The Justice Department told the court that it was vindicated in its suspicions and that
“the FBI, in a matter of hours, recovered twice as many documents with classification markings as the ‘diligent search’ that the former President’s counsel and other representatives had weeks to perform calls into serious question the representations made in the June 3 certification and casts doubt on the extent of cooperation in this matter.”
It is not clear from the filing if the FBI has evidence of intentional acts of concealment as opposed to negligence in keeping track of such material. However, stating that the FBI believes that “obstructive conduct occurred” is very serious, particularly if the FBI also believes that this conduct was knowingly or intentional obstructive.
The main point of the filing was to address the court’s indication that it wanted a special master appointment. I have supported such an appointment, even at this late date. Indeed, I felt that this was one of the four failures of Attorney General Merrick Garland in not taking proactive steps to assure that public that this was not a pretextual raid to collect sensitive material for other investigative purposes. It would still have considerable value in the case.
The special master could divide these documents in classified material, unclassified but defense information, and unclassified material outside of the scope of the alleged crimes. The last category would then be returned. That accounting could also offer basic descriptive information on the material without revealing their precise content or titles. The special master could describe material as related to national defense or nuclear weapons (as was previously leaked government sources). The government has already leaked that there was nuclear weapons material being sought. Confirming such general details can be done without giving details on the specific information or even titles for the documents to protect national security. In national security cases, including cases where I have served as counsel, such indexes and summaries are common.
Notably, this filing includes the picture which is being widely distributed. It can, however, leave an obviously misleading impression.
The picture could be seen by many that secret documents were strewn over the floor when this appears the method used by the FBI to isolate classified documents. However, putting that initial concern aside, there is a question as to the purpose of the attachment. It seems entirely superfluous in releasing this one picture. The picture is Attachment F and the textual reference on page 13 simply says
“Certain of the documents had colored cover sheets indicating their classification status. See, e.g., Attachment F (redacted FBI photograph of certain documents and classified cover sheets recovered from a container in the “45 office”).”
It is curious that the DOJ would release this particular picture which suggests classified material laying around on the floor. The point is to state a fact that hardly needs an optical confirmation: the possession of documents with classified cover sheets. Indeed, the top of roughly half of the documents are redacted in photo. The government could simply affirmatively state the fact of the covered pages and would not likely be challenged on that point without the inclusion of this one photo.
For critics, the photo may appear another effort (with prior leaks) to help frame the public optics and discussion. Clearly the court did not need the visual aid of a picture of documents with covers. It seems clearly intended for public consumption.
The arguments raised by the Justice Department are not just familiar but transparently weak. The government argues that Trump lacks standing because the records belong to the United States, not him. However, that is the point. The court is trying to determine who has a right to these documents. The Justice Department itself recognizes that it may have gathered some attorney-client privileged documents in this ridiculously broad search. It allowed the seizure of any box containing any document with any classification of any kind — and all boxes stored with that box. It also allowed the seizure of any writing from Trump’s presidency.
Moreover, the court itself has ample authority to appoint a special master to help sort through such material.
The government and its allies, in my view, misconstrue the impact of Federal Rule of Criminal Procedure 41(g), which provides
” A person aggrieved by an unlawful search and seizure of property or by the deprivation of property may move for the property’s return. The motion must be filed in the district where the property was seized. The court must receive evidence on any factual issue necessary to decide the motion. If it grants the motion, the court must return the property to the movant, but may impose reasonable conditions to protect access to the property and its use in later proceedings.”
However, the Special Master is being used by the Court to determine the status, classification, and categorization of the documents. The Court has the inherent authority to seek such assistance in an independent review of material. Special masters are fairly common helping courts establish the record for ruling on the merits of motions. It may turn out that most or all of this material is properly held by the government, but a Special Master can help establish the record for that decision, including the status of material acknowledged as potential attorney-client material.
The Justice Department also makes the same type of arguments used to oppose the release of a single line of the affidavit in redacted form. It claims that both its investigation and national security would be harmed. That is even less compelling here. A special master would be reviewing documents in a secure facility and would presumably have a clearance. Many of us who have handled national security cases have been cleared for TS/SCI material.
How exactly would a special master review materially undermine national security as opposed to the same review conducted by the Justice Department’s own taint team? The special master is an extension of the court. This is simply a court review in camera of documents.
The use of such arguments after the release of the redacted affidavit only undermines the arguments further. The Justice Department insisted that the court should not release a single line of the affidavit and that any substantive disclosure would unleash a parade of horribles, from damaging national security to sacrificing witnesses.
For those of us who have litigated cases against the Justice Department, it was an all-too-familiar claim by a department notorious for over-classification and over-redaction arguments. For a week, media pundits mouthed the same exaggerated claims and challenged those of us who argued that it was clearly possible to release a redacted affidavit; liberals suddenly shuddered at the thought of doubting the Justice Department. Then the government produced a redacted version that cause no such harms while confirming important facts in the case.
Notably, some of the details in this filing on meetings before the August raid may have been part of the affidavit but redacted.
The Department also claims that it does not need to return personal material to the former president because the evidence of “commingling personal effects with documents bearing classification markings is relevant evidence of the statutory offenses under investigation.” That is again transparency weak. The government has recorded or documented such intermingling and make a record for any trial without refusing to return material that is neither classified nor otherwise subject to government confiscation or removal.
The Department also makes other incomplete or dubious arguments. For example, it asserts that no executive privilege claim can be made by a former president: “The former President cites no case—and the government is aware of none—in which executive privilege has been successfully invoked to prohibit the sharing of documents within the Executive Branch.” That is because this issue has not been fully litigated. It has been a long debate over the ability of former presidents to claim privilege. Indeed, under the Presidential Records Act, such assertions are honored over documents in its possession.
What is clear from this filing is that Merrick Garland will not change his refusal to seek modest steps to assure the public that this investigation is neither pretextual nor political. Instead, he is “all in” on these sweeping and untenable claims of the need for absolute control and secrecy. What is missing is real leadership to address the deep concerns of millions of Americans over the past record of the Department and its current investigation. Instead, Garland has required courts to force the release of a redacted affidavit and the possible appointment of a special master.
What is clear is that Garland’s “trust us” mantra has done little to assuage concerns. Indeed, that seems almost comical to many people, given the Crossfire Hurricane debacle and the fact that this investigation is being handled by the same section.
The court should reject the arguments against the appointment of a special master and allow for an independent review of these documents.
Here is the filing: https://jonathanturley.org/wp-content/uploads/2022/08/doj-response-to-trump-special-master.pdf
Inside the controversial FBI unit behind the Trump raid
The FBI division overseeing the investigation of former President Trump’s handling of classified material at his Mar-a-Lago residence is also a focus of Special Counsel John Durham’s investigation of the bureau’s alleged abuses of power and political bias during its years-long Russiagate probe of Trump.
The FBI’s nine-hour, 30-agent raid of the former president’s Florida estate is part of a counterintelligence case run out of Washington — not Miami, as has been widely reported — according to FBI case documents and sources with knowledge of the matter. The bureau’s counterintelligence division led the 2016-2017 Russia “collusion” investigation of Trump, codenamed “Crossfire Hurricane.”
Although the former head of Crossfire Hurricane, Peter Strzok, was fired after the disclosure of his vitriolic anti-Trump tweets, several members of his team remain working in the counterintelligence unit, the sources say, even though they are under active investigation by both Durham and the bureau’s disciplinary arm, the Office of Professional Responsibility. The FBI declined to respond to questions about any role they may be taking in the Mar-a-Lago case.
In addition, a key member of the Crossfire team — Supervisory Intelligence Analyst Brian Auten — has continued to be involved in politically sensitive investigations, including the ongoing federal probe of potentially incriminating content found on the abandoned laptop of President Biden’s son Hunter Biden, according to recent correspondence between the Senate Judiciary Committee and FBI Director Christopher Wray.
Armed Secret Service agents guard Mar-a-Lago day and night 24/7
Former head of Crossfire Hurricane, Peter Strzok, was fired after the disclosure of his vitriolic anti-Trump tweets.
FBI whistleblowers have alleged that Auten tried to falsely discredit derogatory evidence against Hunter Biden during the 2020 campaign by labeling it Russian “disinformation,” an assessment that caused investigative activity to cease.
Auten has been allowed to work on sensitive cases even though he has been under internal investigation since 2019, when Justice Department Inspector General Michael Horowitz referred him for disciplinary review for his role in vetting a Hillary Clinton campaign-funded dossier used by the FBI to obtain a series of wiretap warrants to spy on former Trump campaign adviser Carter Page.
Horowitz singled out Auten for cutting a number of corners in the verification process and even allowing information he knew to be incorrect slip into warrant affidavits and mislead the Foreign Intelligence Surveillance Act court.
Supervisory Intelligence Analyst Brian Auten was a key member of the Crossfire team.
After leaving, Bratt made a request to Trump’s lawyer for increased security at the facility and asked to see surveillance footage from the security cameras. The lawyer complied with the requests. Months went by before the Justice Department took the politically explosive step of sending FBI agents unannounced to Trump’s home, seizing documents, photos, and other items not just from the storage facility but from multiple rooms on the property, including the former president’s office.
Former assistant FBI director Chris Swecker said the search warrant that agents obtained is quite wide-ranging. He pointed out that it authorized the seizure of any information in any form related to “national defense information,” which he said “does not necessarily include classified material.”
“This is a huge, broad search warrant and a huge, broad investigation leveled against the former president,” Swecker said.
What’s more, he said the physical search of the former president’s residence was far more sweeping than first reported and included unsupervised snooping in several dozen bedrooms, as well as numerous storage rooms and closets, including those of the former first lady. FBI agents took numerous boxes and containers of documents and other material, including several binders of photos and even three passports held by the former president.
Although Attorney General Merrick Garland has said that the DOJ seeks to “narrowly scope any search that is undertaken,” details of the warrant reveal agents had the authority to seize entire boxes of records — including those potentially covered by attorney-client privilege and executive privilege — if just a single document inside the container were marked with a classified marking.
Agents were allowed to also seize any containers or boxes “found together with” ones containing classified papers, according to ATTACHMENT B (”Property to be seized”) of the warrant. In addition, the FBI agents were given the authority to confiscate “any government and/or presidential records created between Jan. 20, 2017, and Jan. 20, 2021,” which covers Trump’s full term in office. That meant they were able to take any item related to the Trump administration.
All told, dozens of boxes and containers were removed from Trump’s residence, very few of which actually contained classified information, the sources said.
According to Federal Election Commission records, Bratt has given exclusively to Democrats, including at least $800 to the Democratic National Committee. The sources said he is close to David Laufman, whom he replaced as the top counterintelligence official at Justice. An Obama donor, Laufman helped oversee the Russiagate probe, as well as the Clinton email case, which also involved classified information.
A Senate investigator said that Laufman was the “mastermind” behind the strategy to dust off and “weaponize” the rarely enforced statutory relic — the Foreign Agents Registration Act — against Trump campaign officials, a novel legal move that the investigator noted is similar to the department’s current attempts to enforce the Presidential Records Act against Trump — which is a civil, not a criminal, statute — by invoking the Espionage Act of 1917.
ZUMA24.com
Laufman signed off on the wiretapping of Trump campaign adviser Carter Page, which the Department of Justice inspector general determined was conducted under false pretenses involving doctored email, suppression of exculpatory evidence, and other malfeasance.
Suddenly resurfacing as a media surrogate for the Justice Department defending the Mar-a-Lago raid, Laufman has been a key source for stories by the Washington Post, CNN, and other outlets.
On CNN, for instance, he claimed the documents seized from Trump’s storage were “particularly stunning and particularly egregious,” and their discovery “completely validates the government’s investigation” into the former president — though he quickly added, “Whether this investigation transforms into an outright criminal prosecution remains to be seen.”
Swecker said that there is strong reason to fear that the FBI’s counterintelligence division might politicize this case.
“For sure, the FBI has dug themselves into a huge hole because of how they handled the Clinton (email) case and then Crossfire Hurricane and Hunter Biden,” Swecker said. “Myself and many of my colleagues think they are treading on very thin ice here.”
“Unfortunately,” he added, “you can’t recuse an entire FBI division.”
Reprinted with permission from RealClearInvestigations.
SEE ALSO
The FBI knew RussiaGate was a lie — but hid that truth
In congressional testimony this month, Wray confirmed that “a number of” former Crossfire Hurricane team members are still employed at the bureau while undergoing disciplinary review. In the meantime, Wray has walled off the former Russiagate investigators only from participating in FISA wiretap applications, according to the sources.
Sen. Chuck Grassley, the ranking Republican on the Senate Judiciary Committee, has asked Wray for copies of recent case files and reports generated by Auten and whether he is included among the team the FBI has assembled to determine which of the seized Trump records fall within the scope of its counterespionage investigation and which fall outside of it.
“It is a disgrace that Auten is still even employed by the bureau,” said 27-year FBI veteran Michael Biasello. “I would substitute other analysts and agents.”
Jay Bratt, the top counterintelligence official at Justice, traveled to Mar-a-Lago in early June and personally inspected the storage facility while interacting with both Trump and one of his lawyers. Trump allowed the three FBI agents Bratt brought with him to open boxes in the storage room and look through them. They left with some documents.
The FBI Raid on Mar-a-Lago is clearly a partisan ploy attempting to stop Trump from running for president in 2024
The FBI is the Amerikan Gestapo
THE GREAT FRAME-UP
This time it is not just the cartoonish Lizard Lady Cheney. This time it is the full court press. The crooked Biden regime, with its crooked Attorney General Merrick Garland and the crooked FBI Director Christopher Wray. This time it is not up to the Congress like the two phony impeachments, this time it is framing Donald Trump for some criminal offense. What that will be exactly is shortly to be revealed. Perhaps today, Friday, August 26, 2022.
This pathological despotic arraignment is very likely at hand. We must be prepared to face it head on, and never lose sight of the fact of the way this fits a set pattern and has all the hallmarks of the past attempted framing of President Trump. We cannot allow ourselves to be duped into buying whatever bill of goods they are going to try to sell the American people this time.
Stay strong, stay committed to justice, stand with our President in what may be his and our greatest challenge yet.
"Resistance to tyranny is obedience to God" -Thomas Jefferson
-- W.D.Whitten 8/26/2022
I am an American patriot. I support the founding principles of this nation so eloquently stated in the Declaration of Independence. I fully support the Constitution of the United States and I grasp it’s meaning and structure completely.
Therefore I am a dissident. My dissent is against the Administrative State and its treasonous stance against the Constitution and the principles of Liberty and Justice. I stand against the corporatist national security state and its propaganda organs of the corporate mainstream Mockingbird media.
I recognize that the United States is no longer the constitutional republic it was founded as and that it is now a corporatist oligarchy as described in Martin Gilens and Benjamin I. Page essay, Testing Theories of American Politics: Elites, Interest Groups, and Average Citizens. This analysis is available on the Internet as a PDF for free. Anyone interested in the promotion of American principles should read this analysis in order to grasp the struggle ahead.
I am shaken to the core that an agency with which I worked and that I trusted implicitly and explicitly for decades has fallen to this level of partisan bias and malfeasance.
Even though many of us expected this the descent of our governments, corporations, institutions and many of our people into this Black Hole is stunning. Good post, thanks.