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Fiendish Thingy

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Member since: Mon Sep 6, 2004, 12:00 PM
Number of posts: 13,777

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Emptywheel: the Elements of The Offense for an 18 USC 793e Prosecution


Excellent overview of the questions a jury would be asked to find in order to convict Trump of violating that section of the Espionage Act.

Back on August 10, I did a post laying out the elements of the offense from some pattern jury instructions for 18 USC 793e, which is what a judge would instruct a jury to consider if the Trump document theft ever went to trial.

I want to update with contents of the affidavit that so that others understand how things like the June 3 meeting at Mar-a-Lago were not only an attempt to get the stolen classified documents back, but were, short of doing so, a way to establish probable cause in the event that Trump would not cooperate. These efforts would overcome the real challenges — laid out in this WaPo article — of holding a former President accountable.

Key to holding Donald J. Trump accountable for the theft of classified documents will not be, as it is in most cases, reference to the multiple Non-Disclosure Agreements that cleared people have to sign (for the reasons the WaPo laid out). Instead, it would be to show that the President Records Act required Trump to return every Presidential Record, classified or not, and that because he did not have clearance after he was no longer President nor (according to Joe Biden) a need to know, he could not retain any NDI. Given the atrocious conditions under which he kept this stuff at Mar-a-Lago and his refusal to fix that, the guidelines on retaining classified information (which are cited in the affidavit) would also be key.

Here’s what jurors would be asked to decide:

Much, much more at link.
Posted by Fiendish Thingy | Fri Aug 26, 2022, 09:31 PM (3 replies)

My wish list for SNL hosts and musical guests this season:

D’arcy Carden (Barry, League of Their Own)
Bill Hader (for the Halloween show please!)
Hannah Waddingham (Ted Lasso)
Stephanie Beatriz (Brooklyn 99, Encanto)
Elle Fanning (The Great)
John Mulaney
Jeff Bridges
Steve Buscemi

Musical Guests wish list:
The Regrettes
Belle & Sebastian
The Beths
Posted by Fiendish Thingy | Mon Aug 22, 2022, 10:32 PM (8 replies)

People who gift Star Memberships:

Thanks to the anonymous donor who gifted me a Star Membership!

People who gift Star Memberships:
Posted by Fiendish Thingy | Mon Aug 22, 2022, 10:53 AM (4 replies)

Emptywheel: Next steps in Trump stolen documents investigation


A number of people have gotten impatient that the search of the former President’s golf resort has not yet yield an indictment. “If you or I did what he did,” a common refrain goes, “we’d already be in prison.”

I often point to the example of Joshua Schulte, the former CIA coder convicted last month of the Vault 7 and 8 leaks. He wasn’t jailed until almost nine months after the initial search of his apartment, and only then because he violated bail conditions on charges related to Child Sexual Abuse Materials allegedly found on his server. He wasn’t charged on the Espionage Act charges until 15 months after that initial search.

And it sounds like Trump won’t be charged anytime soon. At a hearing before Magistrate Judge Bruce Reinhart last week, the head of DOJ’s counterintelligence section, Jay Bratt, said the investigation is in its “early stages.” That may suggest that Trump or others are suspected of more than just storing classified information in insecure conditions and refusing to give it back. Perhaps the people entering and exiting the storage closet at Mar-a-Lago did something more than just hide stuff from DOJ. Or perhaps the obstruction investigation — which may be obstruction of this investigation or others — is more complex than we imagine (which isn’t hard, because most journalists are simply ignoring that suspected crime).

Whatever the reason Bratt stated that DOJ will need to do significant further investigation, there are steps that would be required in any case. There are four steps that the FBI would take before considering charges.

Much, much more at link, including details of the likely next steps in the investigation:

Filter Review
Scope Review
Classification Review

Posted by Fiendish Thingy | Sun Aug 21, 2022, 04:29 PM (15 replies)

"While Joe Biden is passing bills, Trump..."

“…is passing FBI agents in the hallway”.

Stolen from John Lovett of Pod Save America.
Posted by Fiendish Thingy | Tue Aug 9, 2022, 11:08 AM (2 replies)
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