Tuesday, August 9, 2022

Behind the "Trump Raid" Headlines [UPDATED]

I interrupt my blog silence due only to the looming crisis sparked by the Department of Justice's August 5 decision to obtain a search warrant for Mar-a-Lago, the Florida home of ex-President Donald J. Trump. After some hours of research on the Internet, I have found what I believe is the most likely explanation for this unprecedented move -- by a current administration against a person who is not only its immediate predecessor, but who is also its most likely opponent in the next presidential election. The explanation requires the reader to piece together certain details from a number of isolated stories. Let's begin:

1. We know that days before his term ended, President Donald Trump had decided to declassify and release all of the documents his security assistants had uncovered and assembled that documented the infamous "Russia election interference hoax" which had hounded Trump's campaign and first term in office.

2. We know also that there was a last-minute plea from the FBI objecting to the declassification of the documents, and that Trump acceded to the FBI's demand to make last-minute redactions to some of them:

“I have determined to accept the redactions proposed for continued classification by the FBI in that January 17 submission,” Trump said in his memo. “I hereby declassify the remaining materials in the binder. This is my final determination under the declassification review and I have directed the Attorney General to implement the redactions proposed in the FBI’s January 17 submission and return to the White House an appropriately redacted copy.”

3. But we know further that the FBI and the DOJ had long planned to delay redacting the documents until after Trump left office on January 20, so that they would not be released beforehand.

4. Moreover, we learned later that Trump's own White House counsel's office had not completed marking down the documents Trump had ordered declassified before January 20, so that when Trump took the helicopter just after noon on that day, the documents were still with his counsel's office, and still had the "Classified" markings on them.

5. Nevertheless, by February 2022, at least fifteen boxes of documents from the White House had made it to Mar-a-Lago, and after some reasonably calm discussions, Trump agreed to let the National Archives and Record Administration take them for its permanent records, according to this story at the time.

6. Even though the boxes contained what were described as mostly "mementos, gifts, letters from world leaders and other correspondence," officials at the National Archives complained later that they also contained documents marked "classified national security information", and so they referred what they regarded as the unlawful possession of classified materials to the DOJ for further investigation.

7. According to this timeline, "senior DOJ officials" met at Mar-a-Lago with Trump's attorneys in May and in June 2022 to discuss Trump's alleged possession of, and possible further withholding of, classified materials "unlawfully" removed from the White House.  Trump stopped by at one point to say hello, and the officials were allowed to look through boxes containing the documents, but apparently no further documents were returned to the National Archives as a result of the discussions.

8. After negotiations apparently broke down, the DOJ / FBI applied for a search warrant on August 5, as stated above. Even though this matter involved a former President and possible future candidate, the DOJ did not make its application to a sitting federal judge in Florida, but went to a lowly U.S. Magistrate on duty (such officials are not appointed by the President with the consent of the Senate under Article III of the Constitution, but are creatures of Congress under Article I, appointed by the Article III judges who are above them). And that Magistrate, in this instance, happened to be a former attorney for two accomplices of Jeffrey Epstein, as well as an Obama donor, who had received his appointment in 2018.

Can we now put all of this together, and perhaps draw some tentative hypotheses?

It looks to this blogger as though the documents which started all these troubles were some of those which Trump had ordered declassified before his term ended (when he had full authority to declassify any document he wished), but which his counsel's office had not yet gotten around to marking as "declassified", as described in #4 above. (Or they may even have been redacted documents from the FBI/DOJ which likewise had never been marked as declassified, as described in ##2 and 3 above.)

Nevertheless, to the National Archives officials, who were unaware of any of this backstory, it looked as though Trump was trying to make off with classified documents that still had that marking on them, so they made a referral of possible criminal activity to the DOJ.

The DOJ, who should have known better (since they had deliberately delayed in redacting the documents Trump wanted declassified), saw only an opportunity to press new and potentially damaging criminal charges against the former President. They met in May and again in June with Trump's attorneys in order to try to resolve the matter (#7 above), but neither Trump nor his attorneys were prepared to concede he had done anything wrong -- which they would have been doing had they agreed to release any documents he had already ordered declassified while in office, and which he consequently lawfully possessed.

Someone in the DOJ must be convinced, however, that they have the makings of a new criminal case against Donald Trump, and so they sought and obtained authorization from FBI Director Wray and Attorney General Garland to make the raid this week. This decision was made notwithstanding that the FBI never sought to raid or recover indisputably classified materials from Hunter Biden's infamous laptop, or from Hillary Clinton's basement server -- let alone prosecute those miscreants.  Trump, however, is fair game (along with his wife!) in their twisted reckoning.  And so we have the latest manufactured crisis to try to bring down Donald Trump.

It's a theory, at least, that fits a lot of known facts. Time will hopefully tell us whether it is real.

[UPDATE 08/10/2022: Another blogger has snapped into place the final piece of the puzzle.  By asking simply the question: "Which particular documents did Trump declassify so that they could be released?", The Last Refuge bloggers have brought into the light the sinister motives behind the DOJ/FBI's raid. The documents that Trump wanted to release, of course, were those that the Justice Department fought to keep classified: namely, the documents that show how particular members of the DOJ and FBI had targeted Trump from the outset of his campaign and continuing throughout the four years of his presidency, without success. Apparently someone has tipped them off that Trump kept some of those documents as "insurance" for later release in the eventuality that the DOJ continued to stonewall his efforts. (As it has done, using the flimsy excuse of the "ongoing" Durham investigation.) So some of those on high, and who might be most affected by any release of the incriminating documents, gave the pass to conduct a raid on Mar-a-Lago.

There is very likely a showdown coming between such forces as Trump may be able to marshal and the arrogant minions of the Deep State. Stay tuned for updates.]

[UPDATE #2  08/10/2022: This "exclusive" report from Newsweek (a favorite of DC leakers) confirms that there was a source inside the Trump circle at Mar-a-Lago who apparently knew all about the newly installed safe in Trump's office (which is why the raid team brought along a professional safecracker). But the safe proved to be empty of anything that could hurt Trump, so now the recriminations commence. Things are beginning to fall apart; the wagons are circling. Or, as far better expressed by William Butler Yeats, many years ago:

Turning and turning in the widening gyre 

The falcon cannot hear the falconer; 

Things fall apart; the centre cannot hold; 

Mere anarchy is loosed upon the world, 

The blood-dimmed tide is loosed, and everywhere 

The ceremony of innocence is drowned; 

The best lack all conviction, while the worst 

Are full of passionate intensity.

 Therefore: stay calm and dispassionate as this unfolds, for unfold it surely will. But never give in or give up. Have the courage of conviction that all the hard evidence to date furnishes.]

Thursday, April 21, 2022

South Carolina Supreme Court Divides the Baby

The unanimous decision announced on April 20, 2022 by the South Carolina Supreme Court fulfilled (by its unanimity) at least one of the predictions made in the previous post on this blog after the oral arguments last December. Unanimity, however, in this instance served not to resolve thorny issues of South Carolina law, but rather sent a strong signal that the collective Justices were circling their wagons around their own, in a somewhat transparent attempt to recover the Court's dignity lost in the fiasco created by its disgraceful disunity in 2017.

The result (reached by implicit design) can, alas, bring peace to neither of the litigating factions. Applying extremely arbitrary criteria of its own devising, the Court decided that of the twenty-nine individual parishes before it, fourteen (by the documents they adopted) allowed the nationwide trust specified in the Dennis Canon to be applied to their properties, while fifteen did not. The hair-splitting on display here is best illustrated by the following passage from footnote 12 of the main opinion by Justice Few: 

The analysis of whether Holy Cross, Stateburg satisfied the second element discussed above—intent to create a trust—is the same as our analysis for St. Paul's, Bennettsville, but the outcome of the case for the two Parishes is different. This is because Holy Cross, Stateburg took affirmative present action in its 2011 Bylaws to "accede[] to the . . . Canons of the [National Church]," but St. Paul's, Bennettsville merely stated it was "organized under" and "subject to" the Canons.

This strained construction transforms the English word "accede" ("join in, agree and consent to") into a poison pill that forever dooms the property of the parish using it to belong to the national Church rather than to the parish itself and its members -- the latter are entitled to make use of their own property only for as long as they agree to remain with the sinking ecclesiastical shipwreck that is the current Episcopal Church in the United States of America.

The construction has acquired its severity by a questionable legerdemain performed by Justice Few and his colleagues. For they maintain that the Court's 2017 decision, while not "final" with regard to actual ownership of the parishes' properties, was nevertheless final as to the point that any trust established in South Carolina prior to 2006 was presumed irrevocable -- because three of the five justices sitting in 2017 separately opined that it was so. Nevermind that the point was merely hypothetical at the time -- because only two of the five believed, contrary to the Court's 2009 decision in All Saints Waccamaw, that the Dennis Canon had already established trusts on the properties all by itself; the third (Chief Justice Beatty) simply "assumed" that a trust was created if the individual parishes had consented ("acceded") to its imposition.

(Note that the present opinion does not even mention or cite the Waccamaw decision, which unanimously held that the Dennis Canon of its own force could not create a legally enforceable trust in South Carolina. There was no majority in favor of overruling Waccamaw on this point in 2017, yet in 2022 the Court treats the two minority Justices' pronouncements contrary to that case as something the Court must now "adhere" to -- go figure.)

Neither of those two Justices (Pleicones and Hearn) in 2017 remained on the case in 2022. Pleicones had retired and was replaced on the panel by the chief justice of South Carolina's appellate court; Hearn recused herself from the case right after she rendered an extreme and very biased opinion (which was not surprising, given that as an Episcopalian in South Carolina she had been active in opposing any attempts by individual parishes to leave the Church). But the current court treated their dicta (the word attorneys use to describe court pronouncements that are not essential to its actual decision) as firmly established law for purposes of deciding the case in 2022. Justice Few goes out of his way to say that the Court's holding on revocability applies only to the churches in the case (opinion, section III.E):

We adhere today to the votes those Justices cast in 2017. This holding is limited to the trusts created by express accession to the Dennis Canon in this case. We decline to comment on the revocability—or on any theory of revocability—of trusts created by other churches or parishes.

Never mind that in his 2017 opinion, Justice Kittredge had explained that "irrevocability" was only a presumption in South Carolina law, which could be overcome by contrary evidence. Never mind that Justice Hearn had conceded the bias in her own view by recusing herself; "adhere" to her disqualified vote anyway. Never mind that the 2022 Court decided to go only by the accidental words used by the attorneys creating the parish documents, and to draw an arbitrary bright line once the word "accede" was used. This disregards the extensive factual evidence, considered by the court below, about the differing circumstances that applied to the individual parishes when they each adopted their respective documents. 

If anything was presently binding on the Supreme Court, it should have been the factual findings by Judge Dickson below, because they were supported by substantial evidence. The opinion indeed acknowledges this point, at the start of its section III.C. But it goes on to hold, without citing any authority whatsoever, that "the question of whether an action known to have been taken by a Parish created a trust in favor of the National Church and its diocese under South Carolina trust law is a question of law." Stated that way, the conclusion allows the Court to bypass Judge Dickson's findings as to each individual parish and proceed with its arbitrary verbal analysis involving whether the parishes used the word "accede" or not. 

The Court, in short, was interested only in two things: (a) dispose of the case quickly in a fashion that gives something to each side, so neither can claim "victory"; and (b) restore its dignity by making the decision this time unanimous. And that is a recipe for bad law, which can please no one, and which should be nothing to make a judge proud. (An unspoken aim may have been to let any blame for the unsatisfying result fall on those no longer involved in the case, by treating their dicta as settled law which was "binding" on the current Justices.)

Once again, alas, we return to the recurring theme of this blog: the perils that St. Paul warned Christians about in taking their disputes to secular courts. This is not to judge anyone involved in the South Carolina (or other diocesan) litigation, who were faced with an intransigent national Church determined to have its way with every single dissident parish in the land. But it is to say that Christians cannot expect anything better when they place their disputes in the hands of ill-prepared courts to resolve.

There will be one final chapter to this desultory story once the federal courts dispose of the name and trademark claims, probably in ECUSA's favor. I shall not return here to comment; I am done with everything that involves the Episcopal Church. Let it reap what it has so assiduously sown.


Wednesday, December 8, 2021

Where Will the Supreme Court of South Carolina Go From Here?

This morning, your Curmudgeon arose very early (5:30 a.m. PST) to be able to watch the oral argument in the South Carolina Episcopal Church case as it was streamed live from the courtroom of the South Carolina Supreme Court. The argument was both fascinating and confusing, and it will not be an easy task to sort it all out for the interested lay reader.

Perhaps the best way to go about this is first to state a number of propositions upon which all appeared to agree, and then go from there.

First, the appellate counsel on both sides did a great job of holding up under fire. All five justices peppered the attorneys with questions that were not easy to answer, but they did a very good job of responding as well as they could while not losing track of their arguments. 

Second, the two justices (Chief Justice Beatty and Associate Justice Kittredge) who remained from the original arguments and fractured decision in 2017 frankly acknowledged that the Court had failed to be sufficiently specific as to just what had been decided by an actual majority (3-2) vote, and why it had been necessary for Judge Dickson to conduct further hearings below on the issues that remained unresolved. Chief Justice Beatty, in particular, stressed strongly that Circuit Judge Dickson had done just the job that he expected him to do, and would not brook any criticism of the process he followed.

Third, the three new Justices on the panel (Associate Justices Few and James, plus Chief Judge Lockemy from the South Carolina Court of Appeals sitting in place of Associate Justice Hearn, who had recused herself from further proceedings in the case) did their sporting best to enter fully into the proceedings and try to understand what had gone on before, without glossing over the lack of clarity resulting from five separate opinions (only one of which was joined in by one of the other justices then sitting).

I will not here rehearse the multiple problems created by those five earlier opinions, which I did in this previous post, and in this one. Suffice it to say that the current Court recognized that those opinions had purported to decide issues as to which there was no evidence in the record before that Supreme Court, and had failed to be clear about just which of its "rulings" applied to which of the individual parishes, and which to the property in the name of the Diocese (consisting mainly of Camp Christopher).

Thus counsel for the Episcopal Church (USA) parties, Bert G. Utsey III, was hit right between the eyes at the outset by Chief Justice Beatty, who asked him to point to the specific passages in the earlier opinions that "finally decided" which parishes retained their individual properties, and which went to ECUSA.  He attempted to cite Chief Justice Beatty's own words to him, only to have that worthy point out that what he wrote began with the words: "Assuming that [there were parishes who acceded in writing to the Dennis Canon's imposition of a trust on their property], . . ." the properties of those churches would now belong to the national Church. 

When Mr. Utsey attempted to claim there had been "evidence in the record" before the Court to support that assumption, Chief Judge Lockemy shut him down with the observation that the "evidence" he was citing was only an unsupported assertion made by ECUSA's attorneys in their brief, which in turn was based on documents not in the (then) record before the Court -- and that was why the Chief had used the word "assuming" in his opinion: he was taking counsel's words at face value, but had not seen the actual evidence of any agreement by any parish to impose a trust on its property.

And the argument devolved from there, because that really was the problem with "deciding" just what the 2017 opinions had decided. "Two justices [of this Court] were ready just to hand over all the properties to ECUSA on the strength of its passing the Dennis Canon alone," Justice Kittredge said later. That was a reference to the opinions by Justices Pleicones and Hearn, who wanted to change the "neutral principles" rule laid down in All Saints Waccamaw to a "complete deference to the national church" rule of Watson v. Jones -- but they had only two votes for such a reversal, so Waccamaw stood as the applicable law.

In conclusion on this line of argument, I did not perceive a single member of the current panel who was ready to adopt ECUSA's reading of Chief Justice Beatty's 2017 opinion and simply hand over the properties to the national church -- including Chief Justice Beatty himself. So I believe it a correct statement to predict that whatever the current Court decides, all twenty-nine plus seven (or all twenty-eight plus eight, which comes to the same thing) parishes in the South Carolina case will keep their own properties. Any other result would require the Court to overrule Waccamaw, and that is not going to happen.

Unfortunately, as a number of Justices pointed out to Alan Runyan, who ably argued the case for the Anglican Diocese and its parishes, that does not mean that the subsequent course of the case is all clear sailing. "You have," Justice Kittredge pointed out, a "big problem" as to "the law of the case."

That is technical jargon to say that once a point of law is decided by an appellate court, it may not revisit that question in subsequent proceedings and change it to produce a different outcome from before. So even if this Court wanted to say that two justices plus a third (i.e., Pleicones and Hearn, plus the Chief) did not actually decide to hand over the properties to the national Church, it could not if it had actually done so in its 2017 opinions.

Mr. Runyan, however, had a very good response to this point: first of all, the Chief's opinion cannot fairly be read at the same time to be upholding and overruling All Saints Waccamaw, when the only fair conclusion is to acknowledge that it states that he adheres to and follows Waccamaw. Next, Mr. Runyan pointed out that the law of the case doctrine is discretionary with court, and does not have to be rigidly applied. If it would make no sense in the present context, then the Court does not have to follow it.

The Chief Justice likewise wanted to know if the Court was not legally bound by its remittitur which it had entered after its failure to garner three votes in favor of granting the Anglican parties' petition for a rehearing. (He was drawing a legal distinction between a remittitur, which simply sends a case back to a lower court for it to enter a judgment in accordance with the appellate court's opinion, and a remand, which sends the case back to the lower court for further proceedings on issues remaining.)

Mr. Runyan's response was again straight and succinct. He pointed out that their petition for a rehearing had requested the Court specifically to rule on the evidence (which had been earlier culled from the record on appeal at the Court's request, in an effort to pare down the sheer amount of data in the trial record) showing that no parish had consented in writing to the imposition of a trust on its property, but that request had in effect been denied when the vote to hold a rehearing was just 2-2 (with Justice Hearn now recusing herself). As a consequence, he said, there never was a 3-2 vote that was grounded on the actual documentary evidence, as opposed to just being lifted from a biased summary prepared by opposing counsel. "Due process of law" required that there be such an evidentiary hearing before a party could be deprived of its property under the Constitution.

(As an aside, one might well wonder why Chief Justice Beatty refused to provide the third vote in favor of the rehearing, particularly since he was now being so adamant that he had never addressed the factual issue in his 2017 opinion.)

Mr. Utsey then returned to the podium, and the question quickly devolved to this: where can the Court go now from where it is today? It can affirm Judge Dickson's resolution of the case only if it actually reviews (as he did) the evidence previously culled from the record. But how can it fairly remand the case to Judge Dickson to allow the ECUSA parties another opportunity to put on additional factual evidence as to the parishes' respective accessions to the Dennis Canon -- when they had that very opportunity already offered to them by Judge Dickson, and they chose to stand on what was already in the record? 

True, they had taken that stance because they wanted to preserve their position that the Supreme Court's decision that ECUSA take the properties was already clear, and needed no further inquiry or elaboration. (But again -- "clear" in what sense? As to 28 parishes, 29, or all 36?)

The status of Camp Christopher also seems to be in doubt. On the strength again of the opinions by Justices Pleicones and Hearn, as joined in (so ECUSA claims) by Chief Justice Beatty, three justices seem to have ruled that its trustees hold the property in trust for the national church -- but again, based upon what specific factual evidence? The trustees did not go anywhere; they are still the same individuals, and remain members of the same body they belonged to before, which now calls itself the Anglican Diocese. And how, or why, under South Carolina law should a simple corporate change of name mean that the entity so acting thereby somehow loses its status as the beneficiary of the trust property?

If anything remained clear at the conclusion, it was this: the current Justices will have to do the homework of looking carefully at all the documentary evidence in the record in order to feel comfortable with any final ruling they make. There has been too much legal bias and posturing in the past -- like the claim that All Saints Waccamaw was no longer the law in South Carolina, when it clearly was; or like the claim that the Court was required to "defer" to the unilateral decisions by ECUSA in matters of property law (as opposed to religious doctrine). 

The reason for much of that bias and posturing, it has to be said, should be laid at the feet of the now recused, but in 2017 highly partisan, Justice Kaye Hearn -- aided and abetted by retired Justice Pleicones.  Together, their unified front against (former) Chief Justice Toal seems to have deprived her of the command of the law and the authority she wielded to great effect in achieving the unanimous decision eight years before, in the All Saints Waccamaw case.  They appear to have determined that she not be allowed to treat ECUSA in the same fashion again, and alas, if that was their goal, they succeeded. Fortunately, that success may not be lasting, if the current justices prove up to the evidentiary task before them. 

Trying to make the Court's work less burdensome, by having the parties pare down the record, Chief Justice Beatty admitted at the end, had been a mistake. The complex cannot be made simple in that way. There will be no easy out for this Court, and I predict we will have to wait a good many months for a consensus to emerge. Given the facts as we all know them from the history of the last twenty-odd years, there is no reason, in my humble opinion, why there should not be another 5-0 decision in this case.