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.