After the 3 PM deadline, the news is well worth the wait…

This diary was prepared for released after the 3 PM deadline set by the court for the ex-president’s lawyers to respond to the DOJ’s MOTION TO UNSEAL LIMITED WARRANT MATERIALS. I hope that it was worth the wait.

The order as written was pretty self-explanatory. Simple enough for even knuckle-draggers and insurrectionists to understand. Merrick Garland in as stern a message as the AG could muster laid the predicate for the short-term political future as he told a whining Donald Trump to put up or shut up-warning his admirers and truth contortionists to bring it on!

This matter plainly “concerns public officials or public concerns,” Romero, 480 F.3d at 1246, as it involves a law enforcement action taken at the property of the 45th President ofthe United States. The public’s clear and powerful interest in understanding what occurred under these circumstances weighs heavily in favor of unsealing. That said, the formerPresident should have an opportunity to respond to this Motion and lodge objections, including with regards to any “legitimate privacy interests” or the potential for other “injury” if these materials are made public. Romero, 480 F.3d at 1246. To that end, the government will furnish counsel for the former President with a copy of this Motion.

Case 9:22-mj-08332-BER Document 18 Entered on FLSD Docket 08/11/2022

We are now on the precipice of a decision by American voters that will decide whether we remain a democracy or succumb to the twin Sirens of the far right — — ignorance and hate. Like Homer’s monsters, Scylla and Charybdis, the disruptive Sirens who guarded the straits between the Italian region of Calabria and the island of Sicily, represent the dangerous rocky shoals on the one side and raging whirlpools on the other, The Homeric allusion has given rise to other idioms that describe bad choices all around-describing someone on the horns of a dilemma or situated between a rock and a hard place. Donald Trump may have met his match in the shy and resourceful Merrick Garland who seems to have maneuvered Trump into these uncharted waters.

Trump’s choices are limited to admitting that he withheld the documents in question out of stupidity (that might work, but leaves him vulnerable to ridicule), or that he stole them for his own personal use. Neither argument, to continue the allusion above, holds water. The later report in the Washington Post suggests that the search was conducted after the feds had been connected by a close associate of Trump who leaked that the boxes stored in a Mar-A-Lago wine cellar may include nuclear secrets making either of Trump’s choices even more problematic. If he didn’t realize the import of his actions, the country might think “Whaaa?” But if the reason for his theft of classified material was to feather his post-presidential nest, then all that is left to think is “WTF!”

Consider the possibilities. Why would an ex-president refuse to respond to a valid request followed by a formal subpoena and risk the danger of a legal search warrant?

  • The documents in question, if they are indeed highly classified, would not be available to visitors to his “presidential reading room.”
  • If as he will likely argue, he had somehow managed to declassify the documents in question before leaving the White House, then
  • Why wouldn’t this be litigated or argued when the government first requested their return?

The added knowledge that the classified materials may include atomic secrets that are beyond presidential control would remove any excuse that he was ignorant of or mistaken about the law:

Nuclear information is protected by the Atomic Energy Act (AEA) of 1954, as amended, and is a caveat added to the classification level of specific types of information. Information can be classified as S//Restricted Data (S//RD) or TS//RD or S//Formerly Restricted Data (S//FRD) or TS//FRD. The DOE implements the AEA requirements for classification and declassification of nuclear information via 10 CFR 1045, Nuclear Classification and Declassification. The AEA classifies nuclear information as RD, which is not subject to EO 13526. DOE oversees the classification and declassification of all nuclear information protected by the AEA. RD is never automatically declassified and may be declassified only by DOE.

NUCLEAR MATTERS HANDBOOK 2020, Chapter 18, (Revised)

The classification markings on documents containing the nation’s secrets is precise and spelled out in detail in a DOE document that could be subtitled “TOP SECRET CLASSIFICATION BOOKLET FOR DUMMIES.” The labeling and restrictive process clearly identify in large bold print and color-coded directions how restricted data must be handled and who is authorized to classify and declassify the data. Under Federal code 18 U.S.C. § 641 penalties for removing federally controlled documents or materials is a felony.

“Anyone who embezzles, steals, purloins, or knowingly converts to their use or the use of another, or without authority, sells, conveys or disposes of any record, voucher, money, or something of value of the United States or of any department or agency, or any property made under contract for the Government will be fined or imprisoned.”

The code states clearly in the examples it provides to clarify its meaning, that

the “value” or importance of the materials in question determines the perp’s exposure to punishment. It also clearly states that there is a no “oopsies” provision that can mitigate the application of the law:

“It should be noted that intending to return or pay back the government for the property is no defense under 18 U.S.C. § 641 when charged as an embezzlement* offense. As soon as the misappropriation of government property occurs, the offense is complete even if the government ultimately suffers no financial harm.” (emphasis mine)

THEFT OF GOVERNMENT PROPERTY, Eisner Gorin Criminal Defense Attorneys

*So as not to quibble with the term: “ Embezzlement is the fraudulent appropriation of property by a person to whom such property has been entrusted, or into whose hands it has lawfully come. It differs from larceny in the fact that the original taking was lawful, or with the consent of the owner, while in larceny the felonious intent must have existed at the time of the taking.”

— Moore v. United States, 160 U.S. 268, 269 (1895)

The ex-president’s only defense here hinges on “intent”. The wily stratagem employed by the AG to delay his response to the swirling RW echo chamber, whether intentional or not, precluded that defense. Trump never suggested that his removal of materials to his club/home was accidental or could be attributed to the unauthorized directions of a subordinate. He had an opportunity to assert this defense in January when the documents were first requested, in June when he refused to honor a subpoena requesting the return of the documents, or this week as the Feds descended on his basement closet of “nuclear and other secrets”. Instead, he used a trick learned from Roy Cohn, the mob lawyer, and Trump family fixer. He doubled down, castigated the FBI handling of the court-sanctioned warrant, and suggested that the materials were “planted.” No proof, but as always in TrumpWorld hardly necessary. He never said the magic words “oops,” or “I’m sorry”, or even a more colloquial “my bad.”

Merrick Garland waited, bided his time, allowing Trump and the Republican apologists who trusted that the ex-president wasn’t bluffing-or if he was, that the AG and the FBI would retreat as Robert Mueller once did. For those of us who kept our powder dry and waited for the facts to emerge before we hurried off to write assumptions and innuendo, today’s headlines posted at 3 PM were our reward:

The tagline warned viewers in the opening credits of the popular 90’s drama about FBI agents Mulder’s and Scully’s searches for marginalized, unsolved cases in the X-Files that “The truth is out there.” But then, they were only tasked with the paranormal, not the far-from-normal Trump who is truly out there.

Originally published at https://vincerizzo.substack.com on August 12, 2022.

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Vince Rizzo

Former president of the International Association of Laboratory Schools (IALS) and a founder of a charter school based on MI theory.