It has been some time since Donald Trump suffered so many legal setbacks in a single week.
The punishing developments began with the Special Master in the NARA-Lago case effectively stuffing Trump’s lawyers into a locker at a hearing on Tuesday.
Then it got much worse when New York Attorney General Letitia James filed her much-anticipated $250 million civil suit for tax and financial fraud.
It capped off with a unanimous drubbing from an 11th Circuit panel that reinstated the Justice Department’s right to use some 100 classified documents as part of its ongoing criminal investigation.
These legal developments occurred in separate contexts, but there are some through lines worth noting, all of which are heartening for the resilience of our legal system and the rule of law.
L'état, ce n’est pas lui…
King Louis XIV once famously proclaimed:
“L'état, c’est moi!”
“The state, it is I!”
In a similar vein, Trump, though now simply a disgraced former President, has continued to cling to and act as though he was a monarch with unlimited powers, even mystical ones. In an interview with Sean Hannity of Fox News on Wednesday night, Trump defended his actions around removing highly sensitive national intelligence and security documents and sending them to Mar-a-Lago.
Trump said of the act of declassification:
“There doesn’t have to be a process.”
“If you’re the President of the United States, you can declassify just by saying ‘it’s declassified,’ even by thinking about it.”
Memes and jokes that write themselves aside, it is this world view that was very much on trial this week.
Rather alarmingly, Trump further added:
“...because you’re sending it to Mar-a-Lago, or to wherever you’re sending it…”
...implying that he may have sent top secret documents elsewhere.
To his own lawyers’ likely dismay, Trump admitting publicly that he himself sent top secret documents to Mar-a-Lago makes the government’s case more solid that he violated the letter of the law under 18 U.S.C. 793.
Special Master Dearie made it UU, oh Donnieclear on Tuesday that Trump, as the party making the request for the return of certain documents taken from his property under the search warrant, must be treated just like any other plaintiff.
That is, it was Trump’s responsibility to make the case that he was entitled to relief he had requested from the court. The strong implication was that he had not even tried, something confirmed later by the 11th Circuit in its rebuke.
The panel wrote:
"Plaintiff has not even attempted to show that he has a need to know the information contained in the classified documents."
On Wednesday morning, James in her press statement similarly emphasized that Trump would get no special dispensation from her office as it pursued a case that could devastate the Trump Organization and the Trump family.
“As Attorney General of New York, I made a promise to ensure the rule of law applies equally to everyone, even a former President of the United States."
"No one is above the law."
And on Wednesday evening, the 11th Circuit shot down Judge Aileen Cannon’s notion that the threat of an indictment led to some sort of overriding concern for Trump’s reputation as the former President, observing:
“...we find unpersuasive Plaintiff’s insistence that he would be harmed by a criminal investigation.”
It went on to quote the Supreme Court in the rather humorously and aptly named case, Cobbledick v. United States:
“Bearing the discomfiture and cost of a prosecution for crime even by an innocent person is one of the painful obligations of citizenship.”
Saying Something Out of Court Does Not Make It So
Trump and his ilk have an established track record of making wild claims outside of court that their lawyers haven’t the stomach to allege under oath when they might be subject to sanction for misrepresenting matters to the court.
The clearest examples occurred during the aftermath of the election, when Trump’s minions made outrageous and unsupported claims about the election being stolen via vast international conspiracies that defied credulity, yet his campaign offered no credible evidence before the over 60 courts that heard the election cases.
Similarly, in the New York tax fraud case, Trump has made many out of court statements about how he did nothing wrong in inflating the values of his properties.
But when Trump had an opportunity under oath in a deposition to set the record straight with respect to the accuracy and truthfulness of his financial and tax statements, he chose instead to plead the Fifth. He did so for hours, 440 times.
While that can’t be used against him in any criminal matter, because this is a civil case for fraud the jury will be permitted to draw adverse inferences from his refusal to testify.
This same type of behavior was evident in Florida. Trump claimed on posts on his social media site Truth Social that he declassified documents and therefore he couldn’t be held criminally liable for possessing classified information.
But both Special Master Dearie and the 11th Circuit saw right through this sleight of hand. Because many of the documents seized from Mar-a-Lago were plainly marked as classified, it was incumbent upon Trump to challenge that.
As Special Master Dearie said to Trump’s lawyers about the prima facie (meaning, at first sight or “on its face”) evidence before him:
“If the government gives me prima facie evidence that they are classified documents, and you don’t advance any claim of declassification, I’m left with a prima facie case of classified documents, and as far as I’m concerned, that’s the end of it.”
Instead, Trump’s lawyers rather cleverly merely suggested in their papers that he might have declassified the documents, without actually submitting any affidavit from Trump in support of that suggestion.
That was enough apparently for Judge Cannon, but it didn’t fly with Dearie, and it flew even less successfully with the 11th Circuit.
The panelists were plainly up to speed on what Trump had just tried to pull before Dearie when they observed:
"Plaintiff suggests that he may have declassified these documents when he was President. But the record contains no evidence that any of these records were declassified."
"And before the special master, Plaintiff resisted providing any evidence that he had declassified any of these documents."
In short, don’t come into the court making arguments you can’t back up with any evidence.
Reason, Common Sense and Logic Still Matter
Trump has long argued that it is commonplace to inflate property values and that there is no benchmark by which anyone can assert that high valuations have crossed into the realm of fraud. To rebut Trump’s claims, James’s office put out concise statements that pulled some of the best facts from its lengthy complaint.
These appealed to the public’s common sense and included the following examples:
- “Trump's apartment in Trump Tower is 10,996 square feet. Yet, he said it was 30,000 square feet to value it at $327 million. A New York City apartment had never sold for that much.”
- “At Trump Park Ave, he valued 12 rent-stabilized units at market rate, inflating the value by 65 times.”
- “At Mar-a-Lago, he ignored development restrictions to claim the property was worth $739 million. Its value is about $75 million.”
In so doing, she has put the onus back on Trump and his lawyers to justify inflated valuations that defy common sense.
Reason and common sense had gone out the door momentarily in Florida as well after Judge Cannon’s utter refusal, or perhaps simple inability, to parse the case and the facts logically.
Lawyers for the Justice Department had explained that in no world did the documents at issue belong to the former president no matter what his claims of privilege; that their classification status does not change the highly sensitive nature of the documents or render them somehow his; and that her ruling put the judiciary in the unworkable and improper position of attempting to oversee national security questions that have always been the province of the executive branch.
Judge Cannon ignored all this to rule in favor of Trump.
Both Special Master Dearie and the 11th Circuit, however, accepted the arguments of the Justice Department and smacked down those of Judge Cannon.
Dearie asked pointedly on Tuesday:
“How am I going to verify the classification? What business is it of the court?”
And the 11th Circuit noted sharply:
"In any event, at least for these purposes, the declassification argument is a red herring because declassifying an official document would not change its content or render it personal."
"So even if we assumed that Plaintiff did declassify some or all of the documents, that would not explain why he has a personal interest in them."
For legal observers, the return to logic and common sense comes as a welcome relief in a case of such national importance. That two members of the 11th Circuit panel as well as Judge Dearie were actually picked by Trump is further evidence that the system can only be gamed so far.
It’s worth noting that the Supreme Court, which has six conservatives including three Trump appointees, also has ruled against Trump numerous times on matters from the election, to his financial records, to his claims of executive privilege.
If Trump is actually counting on SCOTUS to throw him a life preserver, there soon may be smashed plates and ketchup on the walls at Mar-a-Lago.