From the New York Times:

She gave a voice to the voiceless and opened some eyes.

Judge Aileen Cannon is now hearing Trump’s case for getting a special master to review the documents seized by the FBI at Mar-a-Lago. If she has half a brain she’ll say no. I bet the DoJ already has an appeal ready to file in case she says yes.

Last night Trump’s new lawyers — the old ones are too compromised to continue — filed a response to the DoJ’s argument against a special master. The weirdest thing I’ve read about it is that it argues people should have expected that Trump would be keeping classified documents in his home. CNN:

Every time Trump tries to throw a wrench into the vast justice machine coming toward him, he makes things worse for himself. Last night’s court filing by the Department of Justice in response to his request for a special master is an example.

First, here is everybody’s favorite photograph today.

Photograph attached to Department of Justice court filing.

Eric Lutz writes at Vanity Fair,

Donald Trump’s legal problems appear to have gone from bad to worse overnight. In a court filing late Tuesday, the Department of Justice alleged that the former president and his associates not only failed to turn over highly classified materials he’d taken after leaving office —they concealed the documents and lied to officials who were seeking their return. Investigators “developed evidence that government records were likely concealed and removed from the storage room,” the DOJ wrote in the filing, “and that efforts were likely taken to obstruct the government’s investigation.”

The filing includes some of the most damning evidence of obstruction the government has made public so far, including a photo of classified documents — some gathered by human intelligence sources — recovered from a box in Trump’s Mar-a-Lago office, “commingling” with personal items like framed magazine covers.

See also Philip Bump at WaPo, The photo of classified documents at Trump’s Mar-a-Lago resort, annotated. Bump says that according to the filing, this particular box of stuff was taken from Trump’s office in Mar-a-Lago. The office, mind you, which is probably not all that off limits to employees and guests. It’s not certain where the photograph was taken, but some people have said they recognize the carpet from Mar-a-Lago. 

As for the documents in the photo, we can see the from the cover page that some of this stuff is as classified as classifed gets. But Bump points out something a bit hinky:

Document 3 is more interesting. First, its classification marking was obscured by the government before publishing the photograph. Then there’s the date, which appears to be Wednesday, May 9, 2018. That day, Bloomberg News notes, was one day after Trump announced that the United States would be pulling out of the Iran nuclear agreement.

You have to look at Bump’s article to see the numbering system, but I believe “document 3” is the one behind the “2A” card with a little gold eagle-seal at the top.

We also learned that the FBI searchers found three classified documents in Trump’s office desk at Mar-a-Lago. We know this now because, the filing says, that’s where Trump also kept the passports that were seized.

See also. This is a real tweet. This must be the best excuse the House GOP could muster today.

That TIME Magazine cover was huge threat to national security. ? https://t.co/yy0AOmxMEh

— House Judiciary GOP (@JudiciaryGOP) August 31, 2022

From the Independent (UK):

Mr Trump has accused the department of staging the photo.

“Terrible the way the FBI, during the Raid of Mar-a-Lago, threw documents haphazardly all over the floor (perhaps pretending it was me that did it!), and then started taking pictures of them for the public to see,” he wrote on Truth Social this morning. “Thought they wanted them kept Secret? Lucky I Declassified!”

As I understand it, had the documents been legitimately declassified they would have been returned to whatever agency had classified them to begin with and reissued without the designation. And there would have been a record of this. Also, the POTUS’s powers to request declassification do have some limits. And I don’t think the DOJ was claiming that’s how the documents were found. They were demonstrating how the documents were just shoved into random boxes with non-classified stuff.

Greg Sargent:

At key moments in the Mar-a-Lago saga, you could squint at emerging revelations and conclude that Donald Trump himself might not be directly implicated. Perhaps his aides botched the transfer of documents to the National Archives. Or perhaps they failed to fully account for documents when archives officials came knocking, and fumbled things again when the FBI followed suit.

The key takeaway from the Justice Department’s latest filing in the case is that this notion is getting impossible to sustain. The new filing implicates Trump himself in the hoarding of national security secrets more directly than anything yet.

He was keeping classified stuff in his home office mixed with personal keepsakes like the framed Time magazine cover in the box. That’s proof he knew good and well he was keeping classified stuff, unless somebody can document he never actually used his office. It’s hard to imagine, as Greg Sargent says, that Trump wasn’t intentionally involved in putting that stuff in his office, including his own desk. Obstruction, anyone?

Back to Greg Sargent:

“Is it really the case that for 18 months, nobody, including counsel, ever discussed this with the president or took direction from him?” Weissmann asked rhetorically, noting that the filing says some of these documents were “interspersed with personal items.”

See also Aaron Blake’s analysis of the difference between the Clinon email flap and Trump’s current mess. Yeah, they’re way different.

That leaves us with the mystery of why Trump was hanging on to this stuff. I offered my best guess a few days ago. Today David Von Drehle offered an explanation similar to mine. Drehle says he had observed that Trump took jumbled piles of documents with him just about everywhere and used them as props.

He described interviewing Trump on his private plane during the 2016 campaign. On the seat next to Trump was a large stack of papers. Trump complained that “they” made him read things, but during the flight all he did was occasionally pluck a paper from the pile, look at it quizzically, and put it back. The only things in the pile that engaged his interest were photographs, such as one of Michael Jackson. One suspects a photo of Michael Jackson was not a pressing business or campaign concern in 2016. Trump just liked showing it off. He knew Michael Jackson, you know.

Also,

The most plausible explanation comes from former White House press secretary Stephanie Grisham, who stopped apologizing for her old boss on the afternoon of Jan. 6, 2021.

Grisham noted that Trump simply has a thing for paper — heaps of it, the more jumbled, the better. He even hauled boxes of assorted materials with him when he traveled on Air Force One. “There was no rhyme or reason — it was classified documents on top of newspapers on top of papers people printed out of things they wanted him to read. The boxes were never organized,” Grisham told The Post. “He’d want to get work done on long trips so he’d just rummage through the boxes. That was our filing system.”

He didn’t have any sort of work process or discipline; this was just a long-standing habit of how he made a show of working. And as I wrote in my earlier post, he may have wanted to keep the classified stuff because that made him feel he was still POTUS. There have also been some suggestions that some of the documents contained dirt on various people (Emmanuel Macron’s sex life? Does anyone care?).

So we’ll see if the judge goes through with appointing a special master. If this judge has any brains and self-preservation instincts at all, she’ll say no.

A lot of Republicans want Trump to shut up. They want to run on inflation, on border security, on whatever they can spin into an outrage against Joe Biden. But Trump keeps stepping on the message and making everything all about him.

In case you missed it, this happened yesterday.

Trump calls for him to be declared the winner of the 2020 election and be reinstalled as president, or for there to be an immediate do-over of the presidential election. pic.twitter.com/2jE643rpB1

— Ron Filipkowski ?? (@RonFilipkowski) August 29, 2022

From Huffpost: “Constitutional expert and Harvard Law Professor Lawrence Tribe quipped that if Trump is trying for an ‘insanity defense’ against the various investigations against him, ‘it won’t work.'”

Steve Benen at MSNBC:

That was shortly before noon. In the middle of the night — according to the timestamp, 1:46 a.m. eastern — Trump returned to the subject. After more incoherent FBI/laptop whining, the former president again wrote, “Declare the rightful winner, or hold a new Election, NOW!”

He never gives up.

In May 2021, by way of his now-defunct blog, he celebrated a poll showing most Republican voters “believe Donald Trump is the true president.” In June 2021, The New York Times’ Maggie Haberman reported that Trump “has been telling a number of people he’s in contact with that he expects he will get reinstated” to the presidency by August 2021.

Around the same time, CNN ran a related piece, reporting that Trump has “been asking advisers in recent weeks if he could somehow reassume the presidency this year after listening to farfetched suggestions from conservative commentators and allies.”

Sometime around September 2021, Trump allegedly asked Republican Rep. Mo Brooks of Alabama to work on rescinding the 2020 results and “immediately” putting him back in the White House.

In October 2021, referencing a weird election conspiracy theory out of Arizona that has long since been forgotten, Trump wrote, “Either a new Election should immediately take place or the past Election should be decertified and the Republican candidate declared the winner.”

For reasons unknown, he’s apparently become fixated on this anew.

The reason unknown, I suspect, is that he knows the feds could be closing in on him this time.

Nikki McCann Ramirez at Rolling Stone reports that “Trump spent Tuesday morning feverishly sharing content from supporters on his social media platform Truth Social, posting or re-posting more than 60 times since early Tuesday morning, including content from QAnon accounts and the far-right message board 4chan.”

Molly Olmstead writes at Slate that “Donald Trump went on what can only be described as a meltdown on his social media platform TruthSocial.” Among the “crazy even for Trump” stuff was a QAnon claim that the military is investigating the FBI, CIA, and NSA. Again, it isn’t that mysterious why he’d want to believe that.

As Steve Benen reminds us, “The Justice Department warned last year that the former president’s delusional claims about returning to office could fuel more political violence from his most rabid followers. The Department of Homeland Security raised related concerns.” I suspect that’s exactly what he’s doing; he’s priming his culties to be ready to rumble at the first sign of indictment.

Fortunately, the reach of Truth Social is somewhat limited by the fact that Google Play won’t distribute its Android app.

But all of this ranting from Trump is throwing the Republican Party off its game. More sober heads in the party want to be talking about what they see as the failures of President Biden and congressional Democrats more than the 2020 election or even Hunter Biden’s laptop. (Frankly, if there were anything that incriminating on the laptop we would have heard about it by now.)

From Politico:

Some top Republicans acknowledge the growing angst and concern, as it’s become clearer that Trump may have been warehousing some of America’s most sensitive secrets in an unsecured basement — and even refused to turn them over when the National Archives and Justice Department tried to recover them. One top Republican fundraiser asked to describe the mood among donors, said, “There is enormous frustration.”

“The question is, is there willingness to express that frustration,” the fundraiser added. “I don’t know the answer to that. But there is real frustration, and with the exception of people who are too stupid to understand the need to be frustrated, it is nearly universal.”

Greg Sargent writes that the GOP seems to be ripped in half:

As Donald Trump’s legal travails deepen, a strange split-screen effect has taken hold throughout the GOP. On one screen, Republicans are increasingly anxious about revelations involving Trump, while concocting ever more inventive ways to achieve distance from them.

Why I love Dahlia Lithwick —

Long after the time had passed for male GOP officials to stop, to just stop, pretending they know or understand anything about female anatomy, reproductive organs, medical emergencies and basic preventative health care, they have continued to talk. They have continued to talk and talk and talk even when the massive blowback after the Dobbs decision proved it was an error; Kansas proved it was an error; and after the surprise election of Pat Ryan in a New York special election proved it was an error. Every time a Republican man opens his mouth to talk about women’s bodies, ten new female voters get their wings. Yet somehow, they cannot seem to stop themselves! …

…  One analysis of the Kansas’ voter registration list showed that in the week after Dobbs, more than 70 percent of newly registered voters in that state were women. Those numbers, according to an Upshot analysis of 10 states with available voter registration data, show consistently higher registration for women after the Dobbs leak in May. As Jennifer Rubin recently noted, The Philadelphia Inquirer reported that, “62 percent of women registering since Dobbs registered as Democrats, 15 percent as Republicans and that 54 percent were younger than 25.” And a Pew Research Center poll indicates that “a majority of registered voters (56 percent) say the issue of abortion will be very important in their midterm vote, up from 43 percent in March.” Tom Bonier, CEO Of TargetSmart recently posted on Twitter: “We are seeing early signs of what could lead to a huge increase in women voting in November. …This surge is young and female.” Both Mitch McConnell and RNC Chair Ronna McDaniel are panicking about the GOP’s odds in Congress, directly connected to fundraising around abortion.

See also Persuadable voters are breaking for the Democrats, NBC News poll finds.

Lithwick also discusses Sam Alito.

It is surely the very textbook definition of “privilege” to find yourself unbothered by protests, polling numbers, and voter registration data. Justice Samuel Alito actually laughed in the face of outraged females who called out the bad history, bad economics, and bad medicine in his leaked draft opinion—their complaints were numerous and well-founded, yet he didn’t change a thing. 

Margaret Talbot has a long article about Alito at the New Yorker, Justice Alito’s Crusade Against a Secular America Isn’t Over. Alito is angry, Talbot says, and the article is a search for the source of the anger. It concludes, “In the end, Alito may be angry for the same reasons that many conservatives of his demographic are angry—because they find their values increasingly contested; because they feel less culturally authoritative than they once were; because they want to exclude whom they want to exclude, and resent it when others push back.”

Update: Paul Waldman writes that the great Republican abortion backtrack has begun.

In other news — Over the weekend a U.S. district court judge said she would hold a hearing on Donald Trump’s request for a special master to review the documents seized at Mar-a-Lago. Trump is still arguing a lot of it is “privileged.” Today the DoJ informed the judged that it had already reviewed all of the documents. An FBI “filter team” that routinely does this stuff has reviewed everything seized from Trump and determined which documents shouldn’t be part of a criminal investigation. This includes communications that might fall under lawyer-client privilege.

Rolling Stone has a good timeline of the whole stolen document saga, beginning on January 20, 2021, the day Trump transitioned from POTUS to FPOTUS. And at Slate, Fred Kaplan provides a clear explanation of the legal trouble Trump has gotten himself into.

Trump filed a legal motion this week, arguing that, as president, he had the right to declassify any classified documents and that his continued possession of the material was based on “executive privilege.” A judge should have no problem dismissing both arguments. First, while a president can declassify documents, there is a process for doing so; at the conclusion of the process, the special classified tabs and markings would be removed. Yet the tabs and markings are still on the documents retrieved from Mar-a-Lago. Second, mere possession, much less declassification, of some documents, such as those marked OCORN, must first be approved by the originating agency. That doesn’t seem to have been done either. Third, a president—certainly an ex-president—has no executive privilege to hold documents that properly belong to the National Archives.

Finally, mere possession of these documents is a crime under some of the statutes cited in the affidavit, whether or not they are classified.

There is much that we still don’t know. But one thing is, or at least should be, clear: Trump is in a heap of legal trouble.

In brief, the documents still had security designations and therefore were not declassified; it would still be illegal for Trump to possess them even if they had been declassified; and he has no executive privilege. He lost that at noon on January 20, 2021.

There are a number of opinion pieces today that declare there is no way Trump will not be indicted. This one by Brad Moss seems to be getting the most buzz. I assume the feds will want to conclude their assessment of the damage done to national security before that happens, or perhaps they will wait until after the midterms, although I don’t think they should have to wait until after the midterms because Trump is not a bleeping candidate for anything in the midterms.

Of course, the Right does not believe Trump will be indicted. The editorial board of the Wall Street Journal has an opinion piece up headlined “The Mar-a-Lago Affidavit: Is That All There Is?” The blurb under the headline says, “The redacted 38-pages add to the evidence that the FBI search really was all about a dispute over documents.”  The editorial completely ignores the whole threat to national security thing. Commenters to the op ed are having a fine time quoting from 2016 editorial board articles about how Hillary Clinton needs to face a reckoning.

On the right-wing Hot Air site, Alan Dershowitz is quoted as saying that there is enough evidence to indict Trump, but he probably won’t be. The blogger Allahpundit, falling back on the “Spanky did it first” defense,” then says,

The “Nixon standard” he describes is a stupid anachronism in the context of febrile modern American partisanship. As Trump himself would excitedly tell you, there’s no crime so foul that he could commit that would convince Republicans to turn against him. If the “Nixon standard” is the standard for indicting a former president, Trump is completely above the law. The “Clinton standard” is more trenchant, however. Certainly, Trump should be held to the same standard that Hillary Clinton was when the feds declined to prosecute her in 2016. 

Which, I suspect, is the reasoning Merrick Garland will use when he ultimately decides not to bring charges here.

You know I’m no fan of Hillary Clinton, but there is a huge magnitude of difference between Clinton’s email issues and Trump’s deliberate keeping of stolen, highly sensitive documents in his basement. Here’s a Politifact article from August 9 that explains it. “Hillary Clinton used a private email address for exchanges with her State Department staff. In three instances, email chains included information with ambiguous classification markings,” it says. Trump was sitting on documents with the highest security designation, keeping them in a very much not secured place, and refusing to return them to the National Archives after being asked several times to do so.

Clinton did have a system for keeping clearly marked sensitive information within the State Department’s email servers that was followed most of the time. Clinton was an idiot, however, to ever mix State Department and personal business, classified or not, in a private email account. She also was an idiot to have her own lawyers, and not the State Department or some other authority, review the emails and decide what was personal and what was official, and then delete the personal stuff. But as far as anyone can tell this was all sloppiness and bad judgment more than anything else, and there is no indication that the classified information in the errant email chains was of the top secret, national-security-related level of the stuff Trump was sitting on.

Allahpundit continues,

But let’s be real. The reason Trump won’t be prosecuted isn’t because of “the Clinton standard,” which may or may not be apt depending on what the feds know about what was going on at Mar-a-Lago and we the general public don’t. The reason he won’t be prosecuted is because some of his most fanatic supporters would take to jihad as a result, with Trump egging them on in barely veiled terms on social media. People who were willing to hang Mike Pence to try to keep Trump in power won’t need much convincing to kill FBI agents to try to keep him out of prison. And they’re not shy about admitting it.

No, if Trump is not indicted that won’t be the reason. Or, at least, it’s the absolutely last reason for not indicting Trump. The United States cannot allow a bunch of thugs and bullies to dictate the rule of law. If that’s allowed, you might as well rename the country the United Fascist States of America. If the meatballs carry out any more acts of insurrection, let them face large numbers of National Guard. With tanks. One suspects they will soil their camo pants and surrender quickly enough.

And, tangential to this, do see Behind the American Right’s Fascination With Viktor Orbán by Jacob Heilbrunn at The Atlantic. It’s a discussion of the history of the American Right’s approval of thuggish right-wing dictators.

As far as the official Republican response to the affadavit, so far there hasn’t been much of one from those in the GOP hierarchy. Immediately after its release there was much screeching about redactions. And then they read the unredacted stuff and shut up.

One does suspect they’re thinking that Trump is going to cost them the Senate, again. Between Trump fatigue and the Dobbs decision, the anticipated Red Wave doesn’t seem to be wavin’ much.

The affadavit is out. I’ve been listening to MSNBC, where a panel of security/legal experts has been reading and interpreting the affadavit in real time.

They’re talking a lot about obstruction of justice. At one point the affadavit says there is evidence of obstruction within Mar-a-Lago. They’re talking a lot about “signal intelligence” and “human sources,” which I understand refers to top secret expionage and the identities of spies still working as spies.

Large parts of the affadavit are redacted. The affadavit was accompanied by another document explaining the redactions, which itself contained redactions. This was to protect the identies of witnesses as well as methodologies being used in an ongoing criminal investigation. This ain’t over.

The search intensified Trump’s long-standing animus toward the Justice Department and the FBI. Senior government officials say the investigation and search were necessary to prevent grave damage to national security.

The affadavit also juxtaposes events in this investigation with some of Trump’s public statements, including on Truth Social, that reveals (as if we didn’t know) Trump was lying his ass off. For example, after the recovery of 15 boxes of documents in January 2022, Trump “truthed” that “The National Archives did not ‘find’ anything, they were given, upon request, Presidential Records in an ordinary and routine process to ensure the preservation of my legacy and in accordance with the Presidential Recordds Act.” But that was bullshit, because the feds had been asking for this stuff since May 2021, and Trump was still hanging on to highly sensitive classified material after this.

Seriously. This is like asking the teenage kid to stop playing Minecraft and do his homework 27 times. And then after some number of hours, when you finally confiscate the Gameboy, he whines “that’s so unfaaaaaair. I was gonna do my homework as soon as I got the magic shovel of power” or whatever they do in Minecraft.

In June 2022, the archivists told Trump he needed to leave the documents remaining at Mar-a-Lago to be kept in their current location “until further notice.” No moving them around. Trump interpreted this to mean they were okay with him keeping the documents as long as he put a padlock on the basement door, which he did, but really the feds were thinking in terms of preserving evidence until they were able to retrieve the boxes. I infer this is when the feds began to put together a case for a warrant, so they could just come and take it all and stop playing the bleeping moron’s ego games.

The wonder isn’t that the DoJ got a search warrant; the wonder is why the DoJ didn’t get a search warrant a whole lot sooner.

In the affadavit, Trump is referred to as FPOTUS. We’ll be charitable and assume the F is for “former.”

I’ll link to more comments as they become available.

Update: Greg Sargent, 3 Big Things We Learned from the Mar-a-Lago Affadavit. The three things are:

1. “Trump improperly hoarded a large amount of documents, including ones potentially identifying human intelligence sources.”
2. “This could get much bigger.” It’s clear from the affadavit that this is an ongoing investigation, and there’s a lot the DoJ doesn’t yet know.
3. “Trump’s conspiracy-theorizing is baloney.” But you know that.

As troglodyte state legislatures trip all over themselves to criminalize all abortions, the Biden Administration is insisting on enforcement of federal guidelines that require hospitals to provide abortions if the health of the mother is at risk.

But the righties aren’t having it. This week a U.S. district judge in Texas named James Wesley Hendrix blocked the enforcement of the federal guidelines in the Lone Braincell state. His argument seems to be that the life and health of the mother cannot be prioritized over the life and health of a fetus.

It’s a real shame if a pregnancy creates an emergency medical condition in a woman, but erforming an abortion creates an “emergency medical condition” in the fetus or embryo, the judge wrote.

“Since the statute is silent on the question, the Guidance cannot answer how doctors should weigh risks to both a mother and her unborn child,” the judge’s order said. “Nor can it, in doing so, create a conflict with state law where one does not exist. The Guidance was thus unauthorized.”

Someone might explain to this bozo that if the mama dies, the fetus dies too.

USA Today:

The administration threatened to fine or strip Medicare status from hospitals that failed to follow the guidance, which was issued in the aftermath of the U.S. Supreme Court ending federal constitutional protections for abortion.

Texas Attorney General Ken Paxton said the Biden administration was attempting to use federal healthcare regulations to “transform every emergency room in the country into a walk-in abortion clinic.”

“Last night, the court ruled in favor of Texas!” he said in a tweet. “A WIN for mothers, babies & the TX healthcare industry.”

Hendrix ruled that the guidance, issued under the Emergency Medical Treatment and Labor Act, goes beyond the scope of federal law and fails to appropriately balance the interests of a pregnant person and their unborn child.

“To the extent that the Guidance would require abortion where Texas would not, Texas law does so to ‘provide the best opportunity for the unborn child to survive’,” the order reads. “The Court will not interject itself in balancing the health of an unborn child and the health of his mother when that balancing is left to the people and their elected representatives.”

Since when do “the people and their elected representatives” make life and death medical decisions? Yeah, next time Hendrix needs a ruptured spleen removed, let’s put it up to a vote. I say no.

I wrote years ago, and probably have repeated this several times — “I’ve long believed that whether one is pro-choice or anti-choice does not depend on whether one thinks embryos are human beings. It depends on whether one recognizes that women are human beings. Not archetypes, but real, individual human beings. Including women who get abortions.”

Obviously, women are not real human beings to them. We are just ambulatory major appliances.

These are the kinds of judgments, weighing the risks to mother and fetus, that medical professionals make all the time. The medical people have worked out best practices over periods of many years. We should trust them to do their jobs, not put it up to popular vote by people who don’t know a fallopian tube from a toaster.

In other news — this should cheer you up — the people who took Ashley Biden’s diary and gave it to Project Veritas have been identified, and one of them has reached a plea deal to testify against the “organization” that received the diary. And that woule be Project Veritas. Josh Marshall is celebrating already.