I learned an important lesson in my time as a 1L at Tulane Law School: always read the footnotes in every opinion. It’s particularly pertinent in Supreme Court cases. Justice Harlan Fiske Stone inserted a legendary footnote in an otherwise mundane 1938 case, which initiated the strict scrutiny test:
In Carolene Products, the Court upheld a federal law regulating “filled” milk, an imitation or adulterated milk product. In upholding a federal ban on the shipment of this product via interstate commerce, Justice Harlan Fiske Stone, writing for the Court, indicated that the justices would no longer subject economic legislation to heightened scrutiny, but would instead now apply a rational basis test.
He then inserted a footnote, number four, indicating that the Court would, however, continue to apply a form of heightened scrutiny in situations in which a law or statute conflicts with Bill of Rights protections, where the political process has closed or is malfunctioning, and when regulations adversely affect “discrete and insular minorities.”
Thank you, sir.
I case you’re wondering what Carolene Products produced:
Filled milk? Looks and sounds scary to me.
Back to the Trump documents case. The DOJ filed its brief late Monday evening. It was a stirring-by legal writing standards-refutation of the dumbass brief submitted by Team Trump. I wrote about it last week in a post called The Stupidest Scandal Ever. I stand by that title
“5. Plaintiff states that “[t]here is no criminal enforcement mechanism or penalty” in the Presidential Records Act, and then suggests that DOJ may have “recognize[d] that deficiency, and then decide[d] to re-categorize this case as relating to national security materials[ ]simply to manufacture a basis to seek a search warrant” and may have “mischaracterize[d] the types of documents it sought.” D.E. 1 at 12. These accusations are belied by the statutes cited in the government’s search warrant, which make clear that this investigation is not simply about efforts to recover improperly retained Presidential records. Moreover, 18 U.S.C. § 2071 criminalizes the concealment or removal of government records, including Presidential records.
16. Notably, however, the former President never interposed any executive privilege objection to returning the set of classified documents that was provided by his custodian of records on June 3.”
Guess what Donald. Footnote 5 means that they’re investigating you for obstruction of justice. You and your inept mouthpieces lied to the FBI. That’s a crime. So is withholding information and claiming you’d turned it over.
Christina Bobb, the OAN anchor/lawyer who signed the sworn statement attesting that the document transfer was complete seems to be off the defense team. She’s neck deep in shit and sinking fast. She either takes the fall for the Impeached Insult Comedian or flips, rolls over or whatever your favorite term for turning on your client. She either lied for the Kaiser of Chaos or he lied to her. Neither would be surprising.
I feel a musical interlude coming on:
Thanks, Macca. I had insomnia last night and needed the jolt. This week’s weird dream was about Scotsmen who pronounce the word sheets as if it had two syllables. I am not making this up; my subconscious is.
I would be remiss in my duties if I didn’t post the picture of the evidence that was part of the DOJ brief:
Thanks to the Kaiser of Chaos, we’ve gone from dope on the table to secrets on the ugly rug.
Nowhere in the Trumpist brief was any mention of magic wand declassification. They’re willing to fund raise off this lie but unwilling to lie about this in documents filed with the court. According to people who know these things, when a document is properly declassified the bits marking them as such are removed. Oops.
Team Trump filed a response late last evening. I’ve skimmed it but I’ll let the man who nailed Enron and Manafort speak for me:
The new Trump filing is DRIVEL — a techinical legal term. It basically now seeks to challenge the underlying search warrant probable cause determination– that is not the basis for a valid motion now.
Note: Bobb is not on the filing, but Corcoran is (and two other lawyers).
— Andrew Weissmann 🌻 (@AWeissmann_) September 1, 2022
I guess Christina is Bobbing and weaving in an undisclosed location in Florida. I wonder if D Duce Wannabe is hiding this lassie in Tallahassee.
If the potential defendant weren’t a former president, the reply brief would have been binned, and they’d be begging for a plea bargain.
The judge SHOULD deny Team Trump’s request for a special master at today’s hearing. That’s only relevant when complicated issues of lawyer-client privilege are involved. This case involves rank stupidity and malakatude of the highest order.
Former President* Pennywise is risking everything so he can keep love letters to and from Kim Jung-un and gossip about Macron in his desk drawer. They belong to the people, not to the Impeached Insult Comedian: Ours, ours ours should trump mine, mine, mine. Pun intended; it always is.
Repeat after me: this is the stupidest scandal ever.
The events of the last month support three propositions:
First, Trump is the stupidest president* in American history.
Second, He should be prosecuted in the documents case first rather than waiting for more evidence in other crimes. Let him spend his declining years as a professional defendant in federal and state court.
Third, Always read the footnotes.
The last word was inspired by all the late night filings in the documents case. It goes to Paul Simon: