Former Overstock CEO claims in bizarre Mar-a-Lago filing that Trump appointed Sidney Powell as special counsel but later changed his mind
(Mandel Ngan/AFP)

A legal filing by election conspiracy theorist Patrick Byrne claims Donald Trump verbally appointed Sidney Powell as special counsel, but Rudy Giuliani later persuaded him to reverse the move.

Byrne filed a motion Thursday seeking the unsealing of an affidavit supporting the FBI search of Mar-a-Lago, and in the filing the former Overstock CEO claimed the former president on Dec. 18, 2020, verbally authorized Powell to investigate conspiracy theories about election fraud.

"White House General Counsel Pat Cipollone grew frustrated with the topic of conversation and made it clear that he did not want any involvement with the proposed courses of action, eventually stating, 'Hey if you want to do this you don't need my permission. You don't even need a pen or a piece of paper. You can just say, I hire Sidney Powell as White House Special Counsel, and it's done,'" Byrne stated.

Byrne, who is representing himself in the matter, claimed the discussions went on for about a half hour longer before Trump decided to make the move.

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"'You know Pat? A few minutes ago you said that I can make it happen just by saying it,'" Trump said, according to Byrne's filing. "Well .... OK. I have decided, now I'm saying it. 'Sidney Powell is hereby appointed as White House Special Counsel.'"

Another White House lawyer argued that a security clearance for Powell could take months to be approved, but retired general Michael Flynn told Trump he could "grant any clearance you want, on the spot, verbally," which Byrne argued was supported by the U.S. Supreme Court decision in Marbury v. Madison in 1803.

"Immediately thereafter President Donald J. Trump stated to his White House lawyers, ''I grant Sidney Powell a Top Secret security clearance,'" Byrne stated. "Whereupon the White House counsels were angry, but did not dispute Trump's actions, but instead left the room angrily."

Byrne cited Flynn's brief tenure as Trump's first national security adviser, which ended after it was revealed that he misled Vice President Mike Pence and other White House officials about his contacts with the Russian ambassador, as supporting evidence that the appointment and clearance authorizations were lawful -- and he argued the same was true with the records he kept at Mar-a-Lago.

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"In this case, President Trump's Mar-a-Lago residence was raided for alleged violations of the Presidential Records Act," Byrne argued. "However, President Trump verbally declassified all of the records in question and that were targeted in said search warrant. As Marbury v. Madison makes clear, the final act is all that is required before the presidential act is complete. President's Trump's lawyers advised him that he can speak into existence the powers of the President, which would then be evidenced by a subsequent document, commission, etc."

"Evidence that the President has the power to verbally appoint special counsel has been lawfully exercised and upheld in my presence," he added. "The power of the President to verbally grant/appoint any security clearance level by speaking it into existence has been lawfully exercised and upheld in my presence. The verbal exercise of presidential power is nothing new; it is the requisite final act."

Byrne said that he learned early this year that Giuliani, who was a campaign lawyer for Trump after his 2020 election loss, revealed that he talked the former president out of the Powell appointment.

"In January 2022, I had the opportunity of a social visit with the Honorable Rudy Giuliani," Byrne claimed. "Over the course of lunch, I asked him what happened such that our conversation in the White House had not been implemented. Mr. Giuliani told me that after our party had left the White House at approximately 12:15 AM December 19, 2020, he spoke to the President for an additional 2-3 minutes whereupon the President verbally reversed his decision and instructions. And that is why those earlier decisions were never implemented."

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