What Is Executive Privilege?

We’re covering this in other pieces today. But I want to zoom in on the issue of executive privilege, which Trump’s lawyers have repeatedly invoked in their latest court action. The filing has been mocked, rightly, for various reasons. But I want to zoom in specifically on this issue. Trump claims that many of the documents seized from his estate must be returned to him because they are covered by executive privilege.

This is not how executive privilege works or what it is. Let’s discuss.

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Trump Had A Whopping 300 Classified Documents At MAL!

A lot of things happened. Here are some of the things. This is TPM’s Morning Memo.

But Who’s Counting?!?

New reporting from the New York Times reveals that some 300 documents marked classified have been retrieved from Mar-a-Lago since Trump left the White House. 300! Let’s get into the key revelations, many of which point in the direction of possible obstruction of justice:

  • Of COURSE he did: “Mr. Trump went through the boxes himself in late 2021, according to multiple people briefed on his efforts, before turning them over.”
  • Feds still not convinced: “The Justice Department investigation is continuing, suggesting that officials are not certain whether they have recovered all the presidential records that Mr. Trump took with him from the White House.”
  • Feds sought more surveillance footage AFTER the raid: “Even after the extraordinary decision by the F.B.I. to execute a search warrant at Mar-a-Lago on Aug. 8, investigators have sought additional surveillance footage from the club, people familiar with the matter said.”
  • What the initial surveillance footage showed: “It revealed people moving boxes in and out, and in some cases, appearing to change the containers some documents were held in.”
  • Now we know which Trump lawyer certified they’d turned everything over to the feds: “[Evan] Corcoran then drafted a statement, which [Christina] Bobb, who is said to be the custodian of the documents, signed. It asserted that, to the best of her knowledge, all classified material that was there had been returned, according to two people familiar with the statement.”

Late, Lame And Laughable: Trump Sues Over MAL Raid

Two weeks after the FBI raid on Mar-a-Lago, Trump finally got around to actually challenging the feds in court. In a doozy of a lawsuit full of Trumpian rants, misstatements, and admissions, the former president throws a bunch of stuff against the wall, very little of which will stick.

Trump filed his case not in the courthouse where the search warrant was signed but a few miles up the coast, where he found one of his own appointees:

The court assigned Trump’s requests to Fort Pierce, Fla.-based U.S. District Court Judge Aileen Cannon, a Trump appointee confirmed by the Senate about a week after Trump’s defeat in the 2020 election.

Commentators were smirking over the filing and the media coverage:

EmptyWheel had a field day with the coverage:

Again, here are three competent headlines from this filing:

If you’re a horse race journalist… TRUMP FAILS DELIVER PROMISED FOURTH AMENDMENT CHALLENGE

If you’re a legal journalist: TRUMP LAWYERS ADMIT HE VIOLATED ESPIONAGE ACT.

If you really want to get to the newsworthy bits: TRUMP CONFESSES HIS LAWYER THREATENED ATTORNEY GENERAL MERRICK GARLAND.

Those are your choices. “Trump asks for special review”? That’s not real!?!?! If that were real we would have been here 2 weeks ago.

This Is The Best Part

Trump issued a typically bombastic statement touting his lawsuit, but down at the very bottom is the best part: He just wants to the get back the documents the FBI seized so he can … return them to the National Archives!

Don’t Expect Much From Unsealed MAL Affidavit

The judge may yet unseal the Mar-a-Lago search affidavit but in a written order indicated there was still a chance the redactions would be so extensive as to render the unsealing meaningless.

Gang Of 8 Wants In On The MAL Action

Politico:

The group of congressional leaders charged with reviewing the most sensitive intelligence information has asked the Biden administration for access to the documents seized from former President Donald Trump’s private residence in Florida, according to two people with direct knowledge of the request.

Wait, Are Dems Being Sneaky Strategic?

As experts and journos pour through the language of the Inflation Reduction Act, it seems there’s more and more to like about its climate change provisions.

It also begins to look like Democrats snuck a few things under the noses of Republicans (was Sen. Joe Manchin (D-WV) in on it, too, or was he the gullible mark?).

Case in point: The new law contains robust language declaring carbon dioxide emissions a pollutant under the Clean Air Act, Lisa Friedman reports in the New York Times. That effectively reverses the Supreme Court decision earlier this year in West Virginia v. EPA, which found that Congress had not explicitly authorized the EPA to regulate carbon dioxide emissions.

Republicans weren’t completely fooled, the NYT reports:

In the hours before the legislation passed the Senate, Republicans fiercely fought the language behind closed doors, according to three Senate aides who were involved in the discussions.

Must Read

WaPo:

Sensitive election system files obtained by attorneys working to overturn President Donald Trump’s 2020 defeat were shared with election deniers, conspiracy theorists and right-wing commentators, according to records reviewed by The Washington Post.

Related from TPM: Key Pro-Trump Lawyers, Technicians Worked Together To Breach Voting Machines Nationwide

Latest From Ukraine

WaPo: Car-bomb killing sows unease among cheerleaders of Putin’s war

CNN: Americans urged to leave Ukraine immediately as new Russian attacks feared

NYT: “Five months after Russian forces took over the Zaporizhzhia plant, all that stands between the world and nuclear disaster are dedicated Ukrainian operators working at gunpoint.”

The Cringiest Thing You’ll See Today

If you married Dukakis in the tank and George W. Bush in his “Mission Accomplished” flight suit, you get this comedic disaster.

Former Navy JAG lawyer Ron DeSantis pretends to be a Top Gun pilot dogfighting with the media (ugh, this is so embarrassing) in a new video posted to Twitter by his wife:

Top GOV … get it?

Pure 100% Organic Tucker Carlson

Tucker Carlson celebrated Tony Fauci’s retirement with such zeal, it veered into self-parody, with special class-warfare cameos by Edgartown, Bethesda, Napa, Aspen and Brookline:

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Where Things Stand: RonJohn Is Flailing Around

A recent Marquette University Law School found that Sen. Ron Johnson (R-WI) may not be as safely re-electable as he was ahead of his last reelection in 2016.

The poll was released last week, showing RonJohn is trailing a bit behind his Democratic rival — Wisconsin Lt. Gov. Mandela Barnes has a 7-percentage point lead over Johnson with 51 percent of the vote compared to his 44 percent.

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RonJohn Says He Was Only Involved In Trump’s Fake Electors Scheme ‘For Seconds’

Sen. Ron Johnson (R-WI) attempted to create some distance between himself and President Trump when a reporter recently pressed him on his staff’s apparent involvement in a fake electors scheme to help Trump steal a second term.

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Kansas Recount Does Nothing To Change Win For Abortion Rights

A vote in Kansas to preserve abortion rights was confirmed again Sunday evening, after a partial hand recount in select counties changed fewer than 100 votes.

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Fauci Will Step Down As Top Medical Adviser In December To ‘Pursue Next Chapter’

Dr. Anthony Fauci, White House chief medical adviser and director of the National Institute of Allergy and Infectious Diseases, on Monday said he plans to step down from government service in December to “pursue the next chapter” of his career.

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GOP Guv Nominee Shocked That Candidate She Endorsed Publicly Called Jews Evil

Jarrin Jackson, the Republican contender for an Oklahoma state Senate seat, is not shy about his views: He thinks Jews are evil and that being gay is disgusting. His public comments to that effect have been reported on extensively; it only takes a simple Google search to see them. 

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Paranoid

Rich Lowry, Editor of The National Review, has a guest opinion piece in the Times today, the gist of which is that Republicans are right to be “paranoid” about the search of the President’s Florida estate. We hear about Democratic criticisms of the Whitewater investigation, James Comey’s mishandling of the Hillary’s emails affair, etc. etc. All par for the course. But what I wanted to note is the central role of the Russia probe. It now serves as the baseless investigation, the hoax, the prosecutorial abuse that justifies everything from the Trumpian right that comes later.

This is no surprise from Trump himself: If Trump doesn’t like something, it’s a hoax. But here we see Trump’s relative success defining it as such not only for almost everyone on the right side of the political spectrum but in much of the journalistic world and even among many Democrats.

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Cha-Ching! Leonard Leo Banks $1.6B Donation To New Conservative Nonprofit

A lot of things happened. Here are some of the things. This is TPM’s Morning Memo.

The Judicial Kingmaker

The New York Times has an important story out this morning on an unusual and ginormous donation by a conservative businessman to a new nonprofit group run by Leonard Leo, the co-chairman of the Federalist Society.

In his role at the Federalist Society and at the nexus of the conservative dark money network, Leo is the judicial kingmaker on the GOP side.

Now Leo’s vast influence will be boosted by the $1.6 billion donation to his new group: the Marble Freedom Trust.

The Times explored the series of transactions in which the electronics manufacturing mogul Barre Seid donated 100% of the stock of his company to Leo’s group right before the company was sold to an Irish conglomerate.

Leo has been deeply involved in the nomination and confirmation of every Republican-appointed Supreme Court justice since Clarence Thomas.

Lindsey Graham Succeeds In Stalling His Grand Jury Testimony

A federal appeals court has handed Sen. Lindsey Graham (R-SC) at least a partial victory in his effort to quash a Georgia grand jury subpoena in the state criminal investigation into 2020 election subversion.

Will Mike Pence Testify?

Some signs the Jan. 6 committee may yet hear from the former vice president.

Consistency Is The Hobgoblin Of Small Minds?

A good rundown at the contradictory, internally inconsistent grab bag of defenses, rationales, and justifications Team Trump has come up with attack to the FBI’s search of Mar-a-Lago.

Good One

The NYT Is Well Conditioned To Bogus GOP Attacks

An otherwise helpful story on the massive $350 billion in loans and guarantees for clean energy and automobiles included in the Inflation Reduction Act gives way to pearl-clutching over the kind of bogus narrative Republicans might come up with to attack the program. So well-conditioned is the Times to GOP bad faith attacks that it goes ahead and preemptively draws the comparison to Solyndra:

But like all government efforts to aid industry and advance new technologies, the expansion of the loan authority carries risks for Mr. Biden and the Democrats, who passed the bill without any Republican votes. About a decade ago, conservatives seized on the failure of Solyndra, a solar company that had borrowed about $500 million from the Energy Department, to criticize the Obama administration’s climate and energy policies.

Oh noes! It “carries risks.”

LOLOL

NYT: The gambit to get Rudy Giuliani a pardon AND a Presidential Medal of Freedom.

Must Reads

WaPo: ‘It’s a rip-off’: GOP spending under fire as Senate hopefuls seek rescue

Politico: White coats in the state capital: OB-GYNs become political force in abortion wars

Kansas Recount Preserves Win For Abortion Rights

Results of the Kansas vote against a constitutional amendment targeting abortion is confirmed in partial hand recount.

A Sneak Peek At How Abortion May Play In November

Dave Weigel takes a close look at tomorrow’s special House election in New York’s 19th Congressional District.

How Corporate America Responds To Dobbs

Walmart expands abortion coverage for employees.

Leading The News This Week

Two Arkansas sheriffs deputies have been suspended after a sickening video of a police beating of a suspect on Sunday.

Remember This One?

Closing arguments are set for Monday in the retrial of two men charged in the 2020 kidnapping plot against Michigan Gov. Gretchen Whitmer (D).

CNN’s New Look

CNN’s Reliable Sources signs off after three decades.

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Jan. 6 Panel Members Say They’re In Talks With Pence’s Counsel About Testifying

Reps. Liz Cheney (R-WY) and Adam Schiff (D-CA), who serve on the Jan. 6 Select Committee, on Sunday said that the panel has been in discussions with former Vice President Mike Pence’s counsel about his potential testimony. Last week, Pence said he would consider testifying before the committee if he was invited to do so.

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