Carolyn Maloney Provides NARA Cause to Assert Standing

/104 Comments/in , /by

Carolyn Maloney, fresh off losing her primary, sent a letter to Acting Archivist Debra Steidel Wall as part of a pre-existing inquiry into Trump’s stolen documents.

Noting that, “NARA’s staff recently informed the Committee that the agency is not certain whether all presidential records are in its custody,” she asked for two things from Steidel Wall: To ask Trump to issue a declaration stating that he has returned everything and to provide the Oversight Committee a review of whether the government has gotten everything back.

I urge NARA to seek a personal certification from Donald Trump that he has surrendered all presidential records that he illegally removed from the White House after leaving office. I also ask that the agency conduct an urgent review of presidential records recovered from the Trump White House to assess whether presidential records remain unaccounted for and potentially in the possession of the former president.

[snip]

[T]he Committee requests that NARA conduct an urgent review of presidential records from the Trump Administration to identify any presidential records or categories of presidential records, whether textual or electronic, that NARA has reason to believe may still be outside of the agency’s custody and control. Please also assess any other limitations on the completeness, accuracy, and accessibility of presidential records provided to NARA by the Trump Administration. Please provide the Committee an initial assessment of NARA’s findings from this review by September 27, 2022.

In addition, I urge NARA to seek from former President Trump a written certification that he has surrendered all presidential records or classified materials, has not made any copies or reproductions of such materials, and has not transferred any records or government documents to any party other than NARA or DOJ since his term ended.22 Although the President is not required under current law to provide such a certification, I believe that the exceptional circumstances in this case warrant that Mr. Trump do the same so Congress and the American people can fully understand the impact of his actions on our nation’s security, take mitigating action, and consider legislative reforms. [my emphasis]

Steidel Wall will never get Trump to issue such a declaration. But it will highlight the important question — particularly given the caveat that Christina Bobb added into her own declaration — about whether Trump shared or disseminated these records.

The rumors that he did are so abundant I’m hearing them an ocean away.

Maloney might have more success with her request for a report on whether NARA got everything back. There’s just one problem.

NARA doesn’t have the documents. The FBI does. But the FBI isn’t allowed to do anything with them, under Judge Aileen Cannon’s injunction.

This request from Maloney gives Steidel Wall cause to intervene and to do so on fairly urgent timeline. She has a legitimate request from Congress, after all!

Mind you, the place where Steidel Wall would be required to intervene is in DC, not in Florida.

Which may be the entire point of Maloney’s letter.

Go to emptywheel resource page on Trump Espionage Investigation.

image_print
104 replies
  2. Rugger9 says:

    I would agree about the true purpose for the letter. My question is: can Judge Beryl Howell shanghai the case out of Cannon’s courtroom now or would SCOTUS intervention be needed?

    Arguing in favor of the shanghai is that EP questions and NARA ownership reside in DC by law.

    Arguing for forced SCOTUS intervention is the potential conflict between the 11th and DC circuits.

  3. WilliamOckham says:

    This part is interesting, at least to me:

    In addition, I urge NARA to seek from former President Trump a written certification that he has surrendered all presidential records or classified materials, has not made any copies or reproductions of such materials, and has not transferred any records or government documents to any party other than NARA or DOJ since his term ended.

    (emphasis added)
    Although everyone will be focused on the classified (presumably federal records), I’d love to get Trump on the record about whether or not he allowed presidential records not under the control of the Archives to be scanned.

    • Rugger9 says:

      Maloney will try, but Individual-1 will never say anything about copies until forced. If he admits he has copies it’s a crime but if he stays mum the leverage is still there but not quite as much exposure (until the next round of searches). With Individual-1 it is about removing potential excuses and options until he has none left.

      OT: being snubbed for QEII’s funeral is going to eat at TFG for weeks. Any bets he tries to crash it at Westminster Cathedral?

      • BobCon says:

        Trump won’t admit to anything. But if copies were made — and they may have evidence of copying in the records that were returned, or in witness statements — he wouldn’t be running the copier, camera or scanner himself. So the feds may have been busy for quite a while figuring out who did, and he’s probably been aware of that for a while.

        • rip says:

          Most modern scanners/printers have remote interfaces that would allow skilled “technicians” to watch as jobs are processed. Time-of-day, perhaps a personal ID, # copies.

          Not sure if these devices could actually capture scanned contents (unless it was faxxed) and probably couldn’t tell if the image was an orange butt.

        • BobCon says:

          I was thinking more along the lines of finding in a box three photocopied versions of the same document with classified markings, someone’s thumbprint showing up on page two, and a handwritten note “Make extra copies for Solomon Vogel and Hannity and return original to me DJT.”

          I wouldn’t be surprised if this crew is as bad as the lawyers for Alex Jones.

        • SMF88011 says:

          Many of the newer, high end copiers have hard drives installed in them where they cache documents that are scanned, copied, etc. They can also be configured to keep copies of everything that goes through it. Let’s hope Trump has the top-of-the-line one, with the largest hard drive available, AND their IT guy that set it up to do that.

      • TooLoose LeTruck says:

        I would LOVE to see TFG escorted, if necessary by force, from the funeral…

        “I’m sorry, sir, but you have to leave…’

        “Do you know who I am?”

        “Yes, and you still have to leave…”

        “Hey… Hey! Get your hands off of me! Let go! Let go!”

      • Roger says:

        If he did he’d be in the wrong place. Westminster Cathedral is the relatively new (1903) Roman Catholic Cathedral. Westminster Abbey, where the funeral will take place is Anglican and dates from approximately 960.

        [Welcome to emptywheel. Please use a more differentiated username when you comment next as we have several community members named “Roger” or “Rog.” Thanks. /~Rayne]

        • Rugger9 says:

          My bad, it was a brain fart. However, I still think TFG tries to crash it. All he has to do is get across the pond (did he get his passports back?).

        • rip says:

          Ahhhh. Now we know that a rugger is a roger. So is a rip.

          Ever read Giles Goat Boy by Barth? Some good use of roger and peter.

        • ducktree says:

          There was a young girl of Kilkenny
          Who’s usual charge was a penny
          But for half of that sum
          You could roger her bum
          A source of amusement to many.

          Limericks ‘r us.

        • mamake says:

          My eyes are fried – too much screentime.

          I read PJ’s last words as “dildo passport” and thought instantly “..it travels alone?”
          Oh dear…

          [NB: Moderators, feel free to delete if “too” _____.]

        • Rugger9 says:

          The Abbey was founded in the 7th century by Mellitus, then Bishop of London but this tradition was not written down until around 1080. The current structure was started by order of Henry III in 1245 with additions and remodeling done until Henry VII’s reign in 1519. Edward the Confessor (before Harold II, in around 1042 – 1052) expanded what was then St. Peter’s Church as a Romanesque building and he is buried there. This is the Abbey pictured in the Bayeux Tapestry.

        • TooLoose LeTruck says:

          This is what I love about British historical dramas on film… here in the states, we have some older buildings (1600s?) but nothing like they have in G.B.

          The Brits want to do a piece on Richard III, they can just walk out the building and down the block, and start shooting…

        • P J Evans says:

          Gotta be careful, though – a lot of buildings in that area are much more recent. And then there’s that statue of Richard I, in skin-tight chain mail, outside Parliament.

        • Olav Kvern says:

          The statue outside Parliament that I like is the one of Emmeline Pankhurst. I burst into tears the first time I saw it–had no idea it was there. I would probably have the same reaction if I saw it again, now. A reminder of how far we’ve come, and how much work there is yet to do.

      • ThomasH says:

        Trump shouldn’t take it so personally! The Carter’s, Clinton’s, Bush2’s and the Obama’s are not invited either. Now; if any of the other living presidents show up as honored guest…the expression of venomous rage on Trump’s face would be a sight to see!

  4. HW3 says:

    “d. No copy, written notation, or reproduction of any kind was retained as to any responsive document.”

    all copies were sold at the time of production?

  5. goatrodeo says:

    Another in a long line of “what took you so long” responses. We complained DOJ was slow, and only goosed into action by the J6C taking initiative and re-focusing the public mind ( I wonder if we would all have just moved along by now were it not for the hearings?), and now someone in the Senate is speaking up, and as a lame duck at that. Well wonders never cease.
    But the ultimate “what took you so long” is: wtf every civil servant, up to and including the elected ones like the president, are not required upon leaving office to sign a similar attestation during their exit interview? Or is this in fact the policy already and the only one to flout it is the recent president? I do not know, but every other organization I have been a part of administers exit interviews, including those done for classified settings, with far more rigor than apparently is the case here. Having done literally 1000’s of exit interviews I can say with confidence, and a bit of pride, I was never bamboozled like this, and the organizations I was a part of are much the better for it.
    And oh by the way, speaking of what took you so long, all these phone retrieves at this late date, what are they good for? Who has the same phone they had on Jan 6 2021? I suspect not all that many of us. Is this due process or just slow process. And wtf is taking us so long. I am usually patient, but seeing that we are only now asking for an attestation that he has indeed returned *everything* is just mind-boggling. Crime is fast and justice is slow.

      • goatrodeo says:

        My understanding is most of the latest batch of subpoenas and phone seizures are in the fake elector investigation, which would track the same time frame as J6C? A very long time ago as phones and electronic records are concerned

        • Sparkedcat says:

          Ask yourself why would the DOJ seize nearly two year old phone records? The coverup and obstruction continue at this moment.

    • BirdGardener says:

      “Who has the same phone they had on Jan 6 2021?” I certainly don’t get a new phone often, nor do my family members. It’s too expensive and too much of a pain. But we could be outliers, so I googled. From what I can tell, the average seems to be 2–3 years, but most of those articles were several years old.

      Most recent data I could find; I am not familiar with the site, which wants you to subscribe after a quick look: https://www.statista.com/statistics/619788/average-smartphone-life/

      • rip says:

        True that. Physical phones are switched frequently.

        However the SIM identification card (or now ESIM) usually stays with the owner. This ties the owner to the data conent (Apple, Google, etc.) and allows things like Contacts, Emails, Texts, Photos, etc. to be seamlessly moved between new devices.

        The obstruction would happen if the owner purposefully made an attempt to delete content that is either stored on the SD (storage device) on the phone, or tried to get the provider (Apple, Google, etc.) to delete records.

        And we all know that the providers are loathe to actually delete content that they can utilize long past your lifetime. A DOJ subpoena can probably resurrect that type of content.

        Encrypted communications are harder. Most are still “server-based” meaning that the phone sends an encrypted message to the server for later relaying to a recipient. The encryption keys are probably on the originating phone and these may be passed forward to a new phone by SD or other online transfers. That’s a weakness.

        • SMF88011 says:

          There are US cell phone service companies that do not use SIM cards on their phones – they use the IMEI. My phone is so old that it doesn’t have a SIM slot or the ability to have an e-sim installed. I am perfectly happy with it this way.

        • vvv says:

          I loved my 3g Android, but yeah, hadda change it earlier this year when they dropped 3G in most of the US.

          Love my 5G? Twice the price but half the affection.

  6. Peterr says:

    Hmmmm . . . From Team Trump’s declaration:

    However, there still remains a disagreement as to the classification status of the documents. The Government’s position therefore assumes a fact not yet established. This Court’s Order exercising jurisdiction did not make findings as to the classification status of any documents. Further, whether it was lawful for the Government to seize those documents has yet to be determined by a court of competent jurisdiction.

    The DOJ has clearly sworn that these documents are indeed classified, so if there is a disagreement, with this filing Team Trump is swearing otherwise.

    Has Jason Leopold filed a FOIA request yet, to see these documents that Trump has said that he declassified?

    • earlofhuntingdon says:

      One of the more obnoxious quotes from the response. Trump’s contention that whether the search was valid has not been determined by a court of competent jurisdiction is bullshit.

      A federal magistrate judge did determine there was probable cause that one or more crimes had been committed, and that a search at MAL would find evidence of those crimes. It found precisely the evidence the FBI had probable cause to believe was there. Boxes of it.

      If Trump thought he had a credible legal challenge to that search, he would have filed his challenge before Judge Reinhart, the magistrate who issued it. That’s the normal route. He didn’t.

      Moreover, the normal route is also to challenge the use of allegedly improperly seized evidence at trial. Trump will do that, too, if we ever get there. But for now, he has to steal the evidentiary apple to take his first bite. That is, he is improperly using a separate civil action to cast doubt on that search, without having the facts or law to support his claim.

      The MAL search was valid under Fourth Amendment standards. And contra Ken Dilanian, who should know better, such searches are not “violations” of rights granted under the Fourth Amendment. They are explicitly allowed under that amendment and are exceptions to its reach.

  8. JamesJoyce says:

    No criminal wants discovery.

    As water melting from snowpack follows fall line, Trump’s illegal takings, [Since this is not his property…] would serve to indict him unless destroyed or withheld, Richard M. Nixon

    Conspiracy against USA
    Obstruction of Justice 101

    Trump’s basic misunderstanding of law is no excuse and not different from Harry Sinclair’s illegal obstruction Teapot Dome; 1929 or the Dysfunctional Beer Hall Putsch Crew in 1923.

    Google it?

    One need not be there..

    “Dred Scott” had more “Quantum Standing” to “sue” than the former now naked executive misfit, surely heading to quantum hell, if there is one?

    Winner usually has nexus to reality being hard work and effort based in fact.

    Loser none, foremost denial of reality.

    That the loser actually lost!

    • bmaz says:

      Yes, every “criminal” wants “discovery”. In criminal law, it is called disclosure though. And only an idiot would not want to know what evidence the government has against them. Please do not make people here stupid.

  9. M Smith says:

    Dear Lady,
    I have no more of the stolen boxes which you planted and are my personal property, plus you don’t even have the clearance to look at them, OK. There used to be 18 more but Rose Mary Woods erased them, and there’s Presidence for that. You’re a nasty woman, but I am not a crook.
    Donald J. Trump.

  10. Riktol says:

    [T]he Court determines that a temporary injunction on the Government’s use of the seized materials for investigative purposes—but not ODNI’s national security assessment—is appropriate and equitable to uphold the value of the special master review.

    When Judge Canon refers to “Government” in her injunction, does that refer to DOJ, the whole executive branch, or all 3 branches?
    In other words, if the FBI were to give NARA access to the documents, and NARA did the assessment (which to my mind is close enough to investigation as makes no difference), would that break the injunction?

    • nedu says:

      Your question, as framed to include all three branches, might open up a rather larger can of worms than I think necessary to address here.

      Instead, I’ll point out that the named party-defendant in Trump’s “Motion for Judicial Oversight and Additional Relief” before Judge Cannon (FLSD 9:22-cv-81294-AMC), is the United States of America.

      Further, the National Archives and Records Administration (NARA), currently established under 44 U.S.C. § 2102, is an agency of the United States of America.

      Thus, I don’t believe there’s any genuine controversy over whether NARA is a party-defendant bound by the terms of Judge Cannon’s order. Very simply, I would say that it is bound.

  11. goatrodeo says:

    My understanding is most of the latest batch of subpoenas and phone seizures are in the fake elector investigation, which would track the same time frame as J6C? A very long time ago as phones and electronic records are concerned

        • earlofhuntingdon says:

          In Texas? The good ol’ boys are probably lining up for the job. It wouldn’t surprise me if Gym Jordan were hoping to change his state of residence.

        • BobCon says:

          Starr was so toxic at Baylor they actually put him on a boxcar bound for El Salvador.

          I hope all of the bothsiders writing obits stop for a second to think about that.

        • punaise says:

          OK, you reeled me back in. When he meets the devil, will one of them be wearing a blue dress?

          (no Hades shade intended for Ms. Lewinsky)

        • BobCon says:

          The one person I feel bad about as far as Starr’s death is Lewinsky, because for the next week she’s going to have to deal with stakeouts and ambushes from the Murdoch press and TMZ wanting reactions.

          This would be a good time for Jay Leno to show some contrition.

        • earlofhuntingdon says:

          She’s already offered condolences – to those who loved him – generously avoiding how large or small that number might be. More polished a statement than Starr would have offered, were their situations reversed.

    • Troutwaxer says:

      I try very hard to be kind when someone dies, regardless of who died or how vile they may have been in their personal or public lives. That said, some people make that kindness easier and some people make it harder… ‘nuf said, I think.

  13. MattyG says:

    …So the FBI did seize physical objects – artworks, suits and such. As I posted a while back it wouldn’t be surprising if they’d taken more than documents since it would matter *where* the documents were found.. Juicy Top Secrets taped to the back of wall art and secret pockets sewn into jacket liners… We’re all concerned about legal fine points right now – how about they have him on straight up spycraft. If he’s not in custody yet it’s because they are trying to round up the whole network.. Well it’s an idea….

    • Peterr says:

      It is quite possible that the physical objects were gifts presented to Trump by foreign governments, which except with narrow exceptions, are considered by law to be gifts to the United States of America, not the person of the president.

      It approaches absolute certainty that Trump did not understand that or agree with it, no matter how many times he was told.

      • MattyG says:

        Yep, get that. But I’m just waiting to hear that these objects weren’t just simple gifts. In the same way you be very curious if they seized a copy machine – we’d be all over that. The artwork… in a “Casino Royal” way may attest to a duplicitous manner DT stashed intel. Same with the suits – were they gifts too? What’s their connection to the overall picture of how secret documents were discovered? Wadded up in one of the pockets along with some foreign business cards?

        They returned the passports but not the art or the suits. And DT never mentioned them. I’m getting the sense the Intel side of this criminal investigation is the big thing (not obstruction) and won’t be surprised if there’s a factual connection between the artwork his garments and the secret stuff.

        But enough wild speculation.

  14. Doctor My Eyes says:

    Upthread, someone asked doesn’t Cannon have “the case”. Isn’t the request from Maloney to NARA a different “case”? This is a question for lawyers here. I mean, a civil case going on in Florida concerning Trump is completely different and separate from a Congressional request involving national security, right? Couldn’t the DC case just proceed without respect of Cannon. The conflicted party will be whoever controls the records who would face two conflicting legal demands–that they not investigate and that they turn over the papers to NARA. Couldn’t DOJ just ignore Cannon’s injunction (the way Trump would) and be responsive to NARA? Who would sue them? Will DeSantis send up the National Guard from Florida to enforce Cannon’s ruling in a civil case? I’m in way over my head here,, I hope these way of looking at things has some basis in reality.

    • Troutwaxer says:

      IANAL, but aren’t PRA cases required by law to be filed in DC courts? It seems to me that the law would be very much against Cannon/Trump on this.

      • nedu says:

        The generalized assertion that “PRA cases [are] required by law to be filed in DC courts” is an overstatement of 44 U.S.C. § 2204.

        Subsection 2204(e) provides jurisdiction in the DC District Court for one specific class of actions brought by a former president. Further, paragraph 2204(b)(3) precludes judicial review of a specific determination delegated to the Archivist’s discretion — except as provided by subsection (e).

        Judge Cannon might have slightly understated the extent of the recognition due here in footnote 16 on page 18 of her order (DE 64).

        But subparagraph 2208(c)(2)(C) does read to me as though it contemplates “a court order in another action in any Federal court” which is different from “an action initiated by the former President under section 2204(e) of this title”.

        Thus, it seems to be a significant overstatement to say that 2204(e) is the exclusive mechanism by which PRA cases may be brought in the federal court system.

        (I’ll also note here that I have recently read Armstrong I & II, among other relevent cases…)

  15. Cosmo Le Cat says:

    It’s high time that the executive branch ignores Judge Cannon. Her order is ultra vires. It’s a separation of powers issue. A Florida district judge lacks the power to halt an urgent national security investigation conducted by the executive branch in DC, in the district where the original crime occurred and its grand jury sits. A Florida judge can’t stop the executive branch from urgently identifying DNA and fingerprints on certain national security documents.

  16. Doctor My Eyes says:

    It certainly does seem that Cannon’s FL case would not have a chance against a DC case involving not Trump, but US national security.

    So, I’ve gotten clearer on what I want to ask. Does this interpretation hold water? Cannon has ordered the DOJ not to use the seized documents in an investigation. Congress contacting NARA is the legislative branch and the executive branch cooperating to do their constitutional duty to protect the security of the US. It is not a criminal investigation. So, is the following a way to evade Cannon’s restriction on the documents? NARA gets the records, gives them to Congress, Congress hires ex-FBI (or even hires current FBI personnel already on the investigation) to help them with their congressional, non-criminal investigation. The investigation is conducted enough like a criminal investigation to get enough I’s dotted and T’s crossed to submit their findings to the DOJ as a criminal referral. DOJ then begins a criminal investigation on the basis of evidence collected by Congress, not having used the records themselves. Or at the very least, they can continue to advance the investigation, under the aegis of Congress, so that they will be ready to go the moment the Cannon nonsense plays out.

    I said a while back that, as soon as Trump violated procedure with highly classified documents, he became secondary, a side-show, to the much more important obligation to protect every single citizen of the USA. Work on protecting security and let Trump be washed away in the necessary cleansing to come, just another traitor.

  17. DryHeat says:

    Going back to the “personal records” issue… I recognize that the Judicial Watch (845 F.Supp.2d 289) says that decision is to be made “by the executive,” but I am wondering if there are any bounds on how that decision is made. (I am keeping in mind that Judicial Watch is a district court decision.)

    First, the PRA doesn’t really specify who does the categorizing; it just says the records “shall, to the extent practicable, be categorized as Presidential records or personal records upon their creation or receipt and filed separately.” (2203(c)). To me, this looks like more of a records management directive than a substantive rule.

    Second, the PRA contains a detailed description of what constitutes a “personal record” at 2201(3)(A-C). Is it really the case that a president can declare a record clearly outside that description to be a “personal record,” and nothing can be done about it?

    To take an extreme example, could a president receive a memo from the Secretary of Defense saying that we have discovered all our nuclear warheads are defective — and designate that a “personal record”?

Comments are closed.