It is now even more urgently orange jumpsuit time

See updates through September 19, 2022, at end of post.



Fig. 1. Donald Trump, depicted in an orange jumpsuit, reportedly by the Drudge, via Mediaite,[1] fair use.

I suppose I should not be surprised that the story of Donald Trump’s absconding with records that properly belong with the National Archives and Records Administration[2] is taking a darker turn.

I was, to be honest, inclined to dismiss Trump’s apparently ridiculous lawsuit attempting to retrieve all the records[3] seized in a search at Mar-a-Lago[4] as yet another stalling tactic, the sort he is famous for, and indeed not to take note of it at all. But the impression I’m now getting is that this is in fact an exceptionally, even for Trump, desperate move.[5] Something is in those boxes that he not only wanted to keep, rather than to destroy,[6] but either that he doesn’t want the government to have or that he intended somehow to hold as leverage.

We proceed in two directions at this point. First, if it’s all really bad enough, it will never see the light of day. It’s too sensitive. Short of regime collapse, you and I will have been dead for centuries before, if ever, we learn what it is.

Second, the secrecy about whatever the fuck Trump was up to leaves an opening for conspiracy theorists who will, of course, somehow spin all this in his favor, further increasing the risk of a renewed civil war.[7]

At this point, I don’t see how prosecuting Trump[8] can make things worse. Merrick Garland has been inexcusably dithering on that point.[9] But the orange man needs to be behind bars, denied bail, in an orange jumpsuit, and photographs of the latter widely disseminated. Now.

And if not, then there needs to be a damned good explanation why not.


Update, September 1, 2022:

There’s no way to predict whether the Justice Department will ultimately pursue charges against the former president or his associates. But in a court filing Tuesday night, government lawyers recounted numerous instances in which [Donald] Trump’s lawyers allegedly misled government officials during the investigation, and in which Trump or his team appear to have haphazardly handled materials that contained national security secrets.

The evidence laid out in the filing, experts said, could build a legal case that Trump attorneys Evan Corcoran and Christina Bobb obstructed the government’s investigation, allegedly telling FBI agents and prosecutors that they had handed over all classified documents when in fact many remained in Trump’s possession.[10]

And they’re still desperate for an excuse, any excuse they can come up with, to avoid charging Donald Trump:

Still, despite the mounting evidence found at Mar-a-Lago, there is no precedent for prosecuting a former president. That’s one of the questions investigators are probably grappling with as they proceed with their probe: What does it take to charge someone who once served as the commander in chief?

The evidence would need to meet a higher threshold than is necessary in a typical case, according to Chuck Rosenberg, a former U.S. attorney and senior FBI official.[11]

There is no explanation, none whatsoever, for this “higher threshold.” It just magically, mysteriously is, just like that nobody, not just the Department of Justice itself, can prosecute a sitting president,[12] and just like they have to avoid prosecuting when it might affect an election outcome.[13] There’s always an excuse.


Update, September 2, 2022: The Federal Bureau of Investigation search at Donald Trump’s residence at Mar-a-Lago retrieved 43 empty folders with classified markings and “an additional 28 empty folders labeled as ‘Return to Staff Secretary’ or military aide.” It is not known what happened to the contents of these folders.[14] I’m not the FBI or the Department of Justice, but I’d want to search every single one of Trump’s properties thoroughly. Oh, yeah, and it’s now way past orange jumpsuit time.[15]

I’m thinking the “black sites” used to torture “interrogate” people who had been reported, witch hunt style, to have connections to al Qaeda or the Taliban would now be an appropriate venue for Trump.


Update, September 6, 2022: In a profoundly dubious ruling,[16] the judge in a case initially laughed off as ridiculous and indeed self-incriminating[17] has granted Donald Trump’s request for a “special master” to review[18] documents the Federal Bureau of Investigation seized[19] in its search of Trump’s residence at Mar-a-Lago.[20]

Ronald S. Sullivan Jr., a Harvard Law School professor, said anyone targeted by a search warrant fears reputational harm, but that does not mean they can get special masters appointed. He called Judge [Aileen] Cannon’s reasoning “thin at best” and giving “undue weight” to the fact that Mr. [Donald] Trump is a former president.

“I find that deeply problematic,” he said, emphasizing that the criminal justice system was supposed to treat everyone equally. “This court is giving special considerations to the former president that ordinary, everyday citizens do not receive.”

Samuel W. Buell, a Duke University law professor, agreed.

“To any lawyer with serious federal criminal court experience who is being honest, this ruling is laughably bad, and the written justification is even flimsier,” he wrote in an email. “Donald Trump is getting something no one else ever gets in federal court, he’s getting it for no good reason, and it will not in the slightest reduce the ongoing howls that he is being persecuted, when he is being privileged.”[21]

So the ruling is ludicrous and would likely be overturned on appeal. But in the meantime, it does its damage, and as Amber Phillips explains, “Dragging investigations out on procedural grounds is [Donald] Trump’s MO [modus operandi] in legal battles.”[22]

If the Justice Department does appeal, the ensuing legal fight could take longer than any document review by the special master — and there is no guarantee that the government would prevail, particularly if the case were to reach the Supreme Court, to which Trump appointed three justices during his presidency and solidified a 6 to 3 conservative majority.

“The Supreme Court has said it’s an open question the extent to which a former president can assert claims of executive privilege against a sitting president,” said former federal judge Paul G. Cassell, who teaches at the University of Utah law school. “Maybe this will be the case that determines and helps settle that open question.”[23]

If the Department of Justice appeals this all the way to the Supreme Court, we will know, beyond the shadow of a doubt, that they’re stalling, that Trump’s strategy is, in fact, their strategy, that they are determined to avoid prosecuting him.


Update, September 19, 2022: It says something that we have to ask the question in Jennifer Rubin’s headline, “If [Merrick] Garland sincerely believes in the rule of law, Trump is in deep trouble.”[24] I do agree we need to ask it. And y’all know I want Donald Trump prosecuted, the sooner the better, and that I am deeply suspicious of the seemingly endless litany of excuses for “delaying” his prosecution.[25]

But Rubin’s column relies on a premise that there is one law, equally applicable regardless of a person’s socioeconomic status.[26] People of color knew this was a lie long before Donald Trump even ran for president. Poor people knew this was a lie long before Trump even ran for president. And Jeffrey Reiman documented that this was a lie long before Trump even ran for president.[27] Neither Rubin nor anybody else advances their argument by repeating that lie.

  1. [1]Alex Griffing, “Drudge Puts Trump in an Orange Jumpsuit as Site Monitors His Potential Indictment,” Mediaite, August 29, 2022, https://www.mediaite.com/news/drudge-puts-trump-in-an-orange-jumpsuit-as-site-monitors-his-potential-indictment/
  2. [2]Jacqueline Alemany et al., “National Archives had to retrieve Trump White House records from Mar-a-Lago,” Washington Post, February 7, 2022, https://www.washingtonpost.com/politics/2022/02/07/trump-records-mar-a-lago/; Farnoush Amiri, “National Archives: Trump took classified items to Mar-a-Lago,” Associated Press, February 19, 2022, https://apnews.com/article/donald-trump-mar-a-lago-national-security-9c1f6dca7e3e8073ee029604c8253a5c; Scott R. Anderson et al., “What We Do and Don’t Know About the FBI’s Mar-a-Lago Search,” Lawfare, August 9, 2022, https://www.lawfareblog.com/what-we-do-and-dont-know-about-fbis-mar-lago-search; Isaac Arnsdorf et al., “Trump is rushing to hire seasoned lawyers — but he keeps hearing ‘No,’” Washington Post, August 16, 2022, https://www.washingtonpost.com/national-security/2022/08/16/trump-lawyers-fbi-raid/; Devlin Barrett and Josh Dawsey, “Agents at Trump’s Mar-a-Lago seized 11 sets of classified documents, court filing shows,” Washington Post, August 12, 2022, https://www.washingtonpost.com/national-security/2022/08/12/trump-warrant-release/; Devlin Barrett et al., “Mar-a-Lago search appears focused on whether Trump, aides withheld items,” Washington Post, August 9, 2022, https://www.washingtonpost.com/national-security/2022/08/09/trump-fbi-search-mar-a-lago/; Devlin Barrett et al., “FBI searched Trump’s home to look for nuclear documents and other items, sources say,” Washington Post, August 11, 2022, https://www.washingtonpost.com/national-security/2022/08/11/garland-trump-mar-a-lago/; Igor Derysh, “‘Lawyers are giggling’: Legal experts scratch their heads at Trump’s ‘very strange’ new DOJ lawsuit,” Salon, August 23, 2022, https://www.salon.com/2022/08/23/lawyers-are-giggling-legal-experts-scratch-their-heads-at-trumps-very-strange-new-doj/; Matt Ford, “Trump’s Republican Defenders Inexplicably Forgot To Expect the Worst,” New Republic, August 16, 2022, https://newrepublic.com/article/167422/gop-response-mar-a-lago-search; Lauren Gambino, “Judge to consider unsealing Trump search affidavit as legal worries mount,” Guardian, August 16, 2022, https://www.theguardian.com/us-news/2022/aug/16/donald-trump-search-affidavit-legal-cases; Sadie Gurman and Aruna Viswanatha, “Merrick Garland Weighed Search of Trump’s Mar-a-Lago for Weeks,” Wall Street Journal, August 15, 2022, https://www.wsj.com/articles/merrick-garland-weighed-search-of-trumps-mar-a-lago-for-weeks-11660601292; Clyde Hughes, “Rep. Greene files articles of impeachment against Attorney General Garland,” United Press International, August 13, 2022, https://www.upi.com/Top_News/US/2022/08/13/-Marjorie-Taylor-Greene-articles-impeachment-Merrick-Garland-Attorney-General/4231660394406/; Julia Ioffe, “Defund… the F.B.I.?” Puck News, August 9, 2022, https://puck.news/defund-the-f-b-i/; Julia Ioffe, “The C.I.A.’s Trump Deja Vu,” Puck News, August 16, 2022, https://puck.news/the-c-i-a-s-trump-deja-vu/; David Klepper, “Trump’s angry words spur warnings of real violence,” Associated Press, August 16, 2022, https://apnews.com/article/ghislaine-maxwell-social-media-donald-trump-mar-a-lago-31741bb13f708ee68b523592623341eb; Erik Larson, “Trump’s ‘Planted Evidence’ Claim Unlikely to Stand Up In Court,” Bloomberg, August 11, 2022, https://www.bloomberg.com/news/articles/2022-08-11/trump-s-planted-evidence-claim-unlikely-to-stand-up-in-court; Alex Leary, Aruna Viswanatha, and Sadie Gurman, “FBI Recovered Eleven Sets of Classified Documents in Trump Search, Inventory Shows,” Washington Post, August 12, 2022, https://www.wsj.com/articles/fbi-recovered-eleven-sets-of-classified-documents-in-trump-search-inventory-shows-11660324501; Arwa Mahdawi, “The Mar-a-Lago search prompts a big question: who snitched?” Guardian, August 13, 2022, https://www.theguardian.com/commentisfree/2022/aug/13/mar-a-lago-search-ivanka-trump-week-in-patriarchy; Renato Mariotti, “Espionage Isn’t the Strongest Case Against Trump. It’s Simpler Than That,” Politico, August 14, 2022, https://www.politico.com/news/magazine/2022/08/14/trump-classified-documents-doj-opinion-00051584; Tara Palmeri, “The Trump Informant Guessing Game: Knives Are Out!” Puck News, August 11, 2022, https://puck.news/the-trump-informant-guessing-game-knives-are-out/; Amber Phillips, “What could the Mar-a-Lago search mean for Trump legally?” Washington Post, August 10, 2022, https://www.washingtonpost.com/politics/2022/02/07/what-is-presidential-records-act-how-did-trump-violate-it/; Jennifer Rubin, “Trump’s risk of indictment for his document snatch just skyrocketed,” Washington Post, August 23, 2022, https://www.washingtonpost.com/opinions/2022/08/23/trump-documents-indictment-risk-skyrocket/; Perry Stein, “Garland vowed to depoliticize Justice. Then the FBI searched Mar-a-Lago,” Washington Post, August 9, 2022, https://www.washingtonpost.com/national-security/2022/08/09/garland-trump-raid-politics/; Asawin Suebsaeng and Adam Rawnsley, “Trump Tells His Lawyers: Get ‘My’ Top Secret Documents Back,” Rolling Stone, August 23, 2022, https://www.rollingstone.com/politics/politics-news/trump-tells-lawyers-get-my-top-secrets-documents-back-1234580501/; Betsy Woodruff Swan, Kyle Cheney, and Nicholas Wu, “FBI search warrant shows Trump under investigation for potential obstruction of justice, Espionage Act violations,” Politico, August 12, 2022, https://www.politico.com/news/2022/08/12/search-warrant-shows-trump-under-investigation-for-potential-obstruction-of-justice-espionage-act-violations-00051507; Eric Tucker and Michael Balsamo, “Trump says FBI conducting search of Mar-a-Lago estate,” Associated Press, August 8, 2022, https://apnews.com/article/donald-trump-mar-a-lago-government-and-politics-9e8d683afe87389407950af7ccfdbdd6; Eric Tucker and Michael Balsamo, “Trump calls for ‘immediate’ release of Mar-a-Lago warrant,” Associated Press, August 12, 2022, https://apnews.com/article/donald-trump-search-unsealing-the-warrant-5e00a3e6728cd77daa0d2180d078fcb6; Paul Waldman and Greg Sargent, “Merrick Garland’s surprise announcement calls the Trump-GOP bluff,” Washington Post, August 11, 2022, https://www.washingtonpost.com/opinions/2022/08/11/garland-announcement-trump-fbi-bluff/; Marcy Wheeler, “Trump's Timid (Non-Legal) Complaints about Attorney-Client Privilege,” Empty Wheel, August 14, 2022, https://www.emptywheel.net/2022/08/14/trump-claims-the-ssa-receipt-includes-privileged-materials/; Cat Zakrzewski, “Lawmakers demand data about online threats against law enforcement,” Washington Post, August 19, 2022, https://www.washingtonpost.com/technology/2022/08/19/fbi-social-media-law-enforcement/; Matt Zapotosky et al., “National Archives asks Justice Dept. to investigate Trump’s handling of White House records,” Washington Post, February 9, 2022, https://www.washingtonpost.com/politics/2022/02/09/trump-archives-justice-department/
  3. [3]Igor Derysh, “‘Lawyers are giggling’: Legal experts scratch their heads at Trump’s ‘very strange’ new DOJ lawsuit,” Salon, August 23, 2022, https://www.salon.com/2022/08/23/lawyers-are-giggling-legal-experts-scratch-their-heads-at-trumps-very-strange-new-doj/; Jennifer Rubin, “Trump’s risk of indictment for his document snatch just skyrocketed,” Washington Post, August 23, 2022, https://www.washingtonpost.com/opinions/2022/08/23/trump-documents-indictment-risk-skyrocket/
  4. [4]Eric Tucker and Michael Balsamo, “Trump says FBI conducting search of Mar-a-Lago estate,” Associated Press, August 8, 2022, https://apnews.com/article/donald-trump-mar-a-lago-government-and-politics-9e8d683afe87389407950af7ccfdbdd6
  5. [5]Asawin Suebsaeng and Adam Rawnsley, “Trump Tells His Lawyers: Get ‘My’ Top Secret Documents Back,” Rolling Stone, August 23, 2022, https://www.rollingstone.com/politics/politics-news/trump-tells-lawyers-get-my-top-secrets-documents-back-1234580501/
  6. [6]Ashley Parker et al., “‘He never stopped ripping things up’: Inside Trump’s relentless document destruction habits,” Washington Post, February 5, 2022, https://www.washingtonpost.com/politics/2022/02/05/trump-ripping-documents/
  7. [7]David Benfell, “The danger that remains,” Not Housebroken, May 23, 2021, https://disunitedstates.org/2021/01/07/the-danger-that-remains/; David Benfell, “The danger that still remains, Not Housebroken, January 22, 2022, https://disunitedstates.org/2021/11/24/the-danger-that-still-remains/
  8. [8]Renato Mariotti, “Espionage Isn’t the Strongest Case Against Trump. It’s Simpler Than That,” Politico, August 14, 2022, https://www.politico.com/news/magazine/2022/08/14/trump-classified-documents-doj-opinion-00051584
  9. [9]Sadie Gurman and Aruna Viswanatha, “Merrick Garland Weighed Search of Trump’s Mar-a-Lago for Weeks,” Wall Street Journal, August 15, 2022, https://www.wsj.com/articles/merrick-garland-weighed-search-of-trumps-mar-a-lago-for-weeks-11660601292
  10. [10]Perry Stein et al., “Justice filing points to new legal trouble for Trump and lawyers, experts say,” Washington Post, August 31, 2022, https://www.washingtonpost.com/national-security/2022/08/31/trump-lawyers-legal-jeopardy/
  11. [11]Perry Stein et al., “Justice filing points to new legal trouble for Trump and lawyers, experts say,” Washington Post, August 31, 2022, https://www.washingtonpost.com/national-security/2022/08/31/trump-lawyers-legal-jeopardy/
  12. [12]Department of Justice, “A Sitting President’s Amenability to Indictment and Criminal Prosecution,” October 16, 2000, https://www.justice.gov/olc/opinion/sitting-president%E2%80%99s-amenability-indictment-and-criminal-prosecution
  13. [13]Michelle Onibokun and Chuck Rosenberg, “The Justice Department’s Policy Against Election Interference is Open to Abuse,” Lawfare, September 11, 2020, https://www.lawfareblog.com/justice-departments-policy-against-election-interference-open-abuse
  14. [14]Eric Tucker, “Trump search inventory released, reveals new details on docs,” Associated Press, September 2, 2022, https://apnews.com/article/donald-trump-mar-a-lago-government-and-politics-6bd103a8e418166b17a34d77e8d9102d
  15. [15]David Benfell, “It is now even more urgently orange jumpsuit time,” Not Housebroken, September 1, 2022, https://disunitedstates.org/2022/08/24/it-is-now-even-more-urgently-orange-jumpsuit-time/
  16. [16]Ann E. Marimow and Devlin Barrett, “Judge’s special-master order a test of Trump’s post-White House powers,” Washington Post, September 6, 2022, https://www.washingtonpost.com/national-security/2022/09/06/trump-judge-cannon-special-master-order/; Charlie Savage, “‘Deeply Problematic’: Experts Question Judge’s Intervention in Trump Inquiry,” New York Times, September 5, 2022, https://www.nytimes.com/2022/09/05/us/trump-special-master-aileen-cannon.html
  17. [17]Igor Derysh, “‘Lawyers are giggling’: Legal experts scratch their heads at Trump’s ‘very strange’ new DOJ lawsuit,” Salon, August 23, 2022, https://www.salon.com/2022/08/23/lawyers-are-giggling-legal-experts-scratch-their-heads-at-trumps-very-strange-new-doj/; Jennifer Rubin, “Trump’s risk of indictment for his document snatch just skyrocketed,” Washington Post, August 23, 2022, https://www.washingtonpost.com/opinions/2022/08/23/trump-documents-indictment-risk-skyrocket/; Jennifer Rubin, “Former GOP Justice lawyers: Trump’s in a heap of trouble,” Washington Post, September 1, 2022, https://www.washingtonpost.com/opinions/2022/09/01/republican-lawyers-trump-documents/
  18. [18]Jess Bravin and Aruna Viswanatha, “Judge Grants Donald Trump’s Request for Independent Review of Mar-a-Lago Documents,” Wall Street Journal, September 5, 2022, https://www.wsj.com/articles/judge-partly-grants-donald-trumps-request-for-independent-review-of-mar-a-lago-documents-11662395427; Charlie Savage, “‘Deeply Problematic’: Experts Question Judge’s Intervention in Trump Inquiry,” New York Times, September 5, 2022, https://www.nytimes.com/2022/09/05/us/trump-special-master-aileen-cannon.html; Eric Tucker, “Judge grants Trump bid for special master in Mar-a-Lago case,” Los Angeles Times, September 5, 2022, https://www.latimes.com/politics/story/2022-09-05/judge-grants-trump-bid-for-special-master-in-mar-a-lago-case
  19. [19]Devlin Barrett et al., “FBI searched Trump’s home to look for nuclear documents and other items, sources say,” Washington Post, August 11, 2022, https://www.washingtonpost.com/national-security/2022/08/11/garland-trump-mar-a-lago/; Devlin Barrett and Josh Dawsey, “Agents at Trump’s Mar-a-Lago seized 11 sets of classified documents, court filing shows,” Washington Post, August 12, 2022, https://www.washingtonpost.com/national-security/2022/08/12/trump-warrant-release/; Josh Dawsey et al., “FBI’s Mar-a-Lago search followed months of resistance, delay by Trump,” Washington Post, August 23, 2022, https://www.washingtonpost.com/national-security/2022/08/23/trump-records-mar-a-lago-fbi/; Alex Leary, Aruna Viswanatha, and Sadie Gurman, “FBI Recovered Eleven Sets of Classified Documents in Trump Search, Inventory Shows,” Washington Post, August 12, 2022, https://www.wsj.com/articles/fbi-recovered-eleven-sets-of-classified-documents-in-trump-search-inventory-shows-11660324501; Eric Tucker, “Trump search inventory released, reveals new details on docs,” Associated Press, September 2, 2022, https://apnews.com/article/donald-trump-mar-a-lago-government-and-politics-6bd103a8e418166b17a34d77e8d9102d; Jan Wolfe, Alex Leary, and Sadie Gurman, “Mar-a-Lago Boxes Had More Than 700 Pages of Classified Papers, National Archives Letter Says,” Wall Street Journal, August 23, 2022, https://www.wsj.com/articles/letter-to-trump-lawyer-highlights-national-archives-concern-over-sensitive-materials-before-mar-a-lago-search-11661271403
  20. [20]Eric Tucker and Michael Balsamo, “Trump says FBI conducting search of Mar-a-Lago estate,” Associated Press, August 8, 2022, https://apnews.com/article/donald-trump-mar-a-lago-government-and-politics-9e8d683afe87389407950af7ccfdbdd6
  21. [21]Charlie Savage, “‘Deeply Problematic’: Experts Question Judge’s Intervention in Trump Inquiry,” New York Times, September 5, 2022, https://www.nytimes.com/2022/09/05/us/trump-special-master-aileen-cannon.html
  22. [22]Amber Phillips to 5-minute Fix list, Washington Post, September 6, 2022, https://s2.washingtonpost.com/camp-rw/?trackId=5a39652eae7e8a58807f9446&s=6317d00bab732227d0107e4b&linknum=4&linktot=48
  23. [23]Ann E. Marimow and Devlin Barrett, “Judge’s special-master order a test of Trump’s post-White House powers,” Washington Post, September 6, 2022, https://www.washingtonpost.com/national-security/2022/09/06/trump-judge-cannon-special-master-order/
  24. [24]Jennifer Rubin, “If Garland sincerely believes in the rule of law, Trump is in deep trouble,” Washington Post, September 19, 2022, https://www.washingtonpost.com/opinions/2022/09/19/garland-trump-cannon-ruling-appeal/
  25. [25]David Benfell, “It is now even more urgently orange jumpsuit time,” Not Housebroken, September 6, 2022, https://disunitedstates.org/2022/08/24/it-is-now-even-more-urgently-orange-jumpsuit-time/
  26. [26]Jennifer Rubin, “If Garland sincerely believes in the rule of law, Trump is in deep trouble,” Washington Post, September 19, 2022, https://www.washingtonpost.com/opinions/2022/09/19/garland-trump-cannon-ruling-appeal/
  27. [27]Jeffrey Reiman, The Rich Get Richer and The Poor Get Prison, 7th ed. (Boston: Allyn and Bacon, 2004).

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