The Tactics of DOJ’s Request for a Partial Stay of Judge Cannon’s Order
I was out when DOJ submitted a series of documents in Trump’s demand for a Special Master. As I’m sure you’ve heard, the government has informed Judge Cannon they will appeal at least some of her decision, but at this point are asking only for a partial stay of her injunction against using the seized classified records for further criminal investigation.
I take this to be a tactical effort, one designed to make Cannon and Trump’s position less tenable going forward, without any guarantee that Cannon will accede to this request (and I think the request faces even odds at best).
DOJ submitted the following documents.
- A notice of appeal to the 11th Circuit
- A motion for a partial stay pending appeal (allowing the FBI to use the 103 documents marked as classified for further criminal investigation)
- A declaration from FBI Assistant Director Alan Kohler, explaining why one cannot sever the criminal investigation from the damage assessment
- A motion to unseal the privilege review status report (but not two appendices)
- A notice of appearance by Anthony Lacosta, who is leading the privilege review
In this post, I’ll attempt to explain why, while the motion for a partial stay may not work, it likely will improve DOJ’s tactical position going forward. There are other parts of this that, I think, are tactical as well. But the main point seems to be to force her to heighten her already egregious stance before DOJ is forced to appeal this.
As I said above, I think DOJ intends the motion for a partial stay to be tactical. I think there’s at least an even chance that Judge Cannon will reject it. If she does, DOJ has told her they will appeal a week from today. As I understand it, that will be a motion for a stay which is separate from the appeal of her ruling more generally, but the 11th Circuit would see the substance of it first. And however batshit the 11th Circuit and SCOTUS judges were who might review it, its substance would be something really modest: That the Executive Branch owns the country’s secrets and needs to protect them.
Plus, SCOTUS has already — in Trump v. Thompson — upheld Executive Privilege assertions less modest than the substance of the stay pending appeal. DOJ might not succeed at the 11th, but they have a good chance of succeeding at SCOTUS, and doing so on accelerated timeframe (in significant part because they are making a credible claim of urgent injury). They’ve narrowed the issue to one they need to reach to be able to investigate stolen classified documents.
The only principle DOJ is asserting in this motion for a stay is that the Executive Branch owns classified information. As I laid out here, Cannon based her decision to butt in on a (largely specious) claim that Trump had personal items included in the seized records. By asking only for a stay for all classified records, the government narrows its Richey argument, noting that Trump cannot own any documents marked as classified.
The second and third factors likewise counsel against exercising equitable jurisdiction with respect to the classified records. Those factors apply only to “the material whose return [the plaintiff] seeks” and to injury resulting from “denial of the return of his property.” Richey, 515 F.2d at 1243. Plaintiff, however, has no right to the “return” of classified records, which are not “his” property. Id. Classified records also are not “personal” to Plaintiff and would not reveal any sensitive personal information. D.E. 64 at 9, 21. Accordingly, Plaintiff has no cognizable “individual” interest in any classified records (or in having a special master review those records), and he cannot be “irreparably injured” if such records are not returned to him. Richey, 515 F.2d at 1243. The Court’s determination that the second and third Richey factors favored the exercise of equitable jurisdiction relied on its finding that Plaintiff had an interest in “at least a portion” of the seized records, including “medical documents, correspondence related to taxes,” “accounting information,” and “material potentially subject to attorney-client privilege,” and that identification of such materials “cannot reasonably be determined at this time.” D.E. 64 at 9.2 But that rationale is categorically inapplicable to the classified records at issue in this motion, which are easily identifiable by their markings, are already segregated from the other seized records, and do not include personal records or potentially privileged communications with his personal attorneys.
Cannon may still not budge! But if she doesn’t, it’ll make the outrageousness of her decision all the more evident, and indefensible.
But even this modest request will cause Trump — and therefore Judge Cannon — a good deal of concern.
Trump has already opposed this motion. (Zoe Tillman emphasized this on Twitter.)
Counsel for the United States has conferred with counsel for Plaintiff, and Plaintiff opposes the government’s motion.
Most notably, it does not concede the import of timely criminal investigation. Without addressing Cannon’s claims to the contrary, the government argued that the single possible injury Trump might face with the sharing of classified records he doesn’t own is in the continuation of the investigation itself.
Plaintiff’s only possible “injury” relates to the government’s investigation itself, but that injury is not legally cognizable. As the Supreme Court has made clear, “the cost, anxiety, and inconvenience of having to defend against” potential criminal prosecution cannot “by themselves be considered ‘irreparable’ in the special legal sense of that term.” Younger v. Harris, 401 U.S. 37, 46 (1971); cf. Cobbledick, 309 U.S. at 325 (“Bearing the discomfiture and cost of a prosecution for crime even by an innocent person is one of the painful obligations of citizenship.”). That is why courts have exercised great caution before interfering through civil actions with criminal investigations or pending cases. See also Deaver v. Seymour, 822 F.2d 66, 69-71 (D.C. Cir. 1987) (applying Younger’s principles with regard to potential federal charges); Ramsden v. United States, 2 F.3d 322, 326 (9th Cir. 1993) (“The mere threat of prosecution is not sufficient to constitute irreparable harm.”). And those fundamental principles strongly support the limited stay the government seeks here.
It noted that it cannot investigate 18 USC 793 (or obstruction of an investigation into that crime) without the classified documents in question.
This case does not involve a pending trial, but the need for the classified records is even more clearly demonstrated and specific here: The government is investigating potential violations of 18 U.S.C. § 793(e), which prohibits unauthorized retention of national defense information. The classified records are not merely relevant evidence; they are the very objects of the relevant criminal statute. Similarly, the government is investigating the adequacy of the response to a grand jury subpoena for all documents in Plaintiff’s possession “bearing classification markings.” D.E. 48 Attachment C. Again, the seized classified records at issue here—each of which the subpoena plainly encompassed—are central to that investigation.
It also talked about FBI’s central role in investigating those 90 empty folders for classified or staff secretary information.
The same is true of the empty folders with “‘classified’ banners” that were among the seized materials here, see D.E. 39-1: The FBI would be chiefly responsible for investigating what materials may have once been stored in these folders and whether they may have been lost or compromised—steps that, again, may require the use of grand jury subpoenas, search warrants, and other criminal investigative tools and could lead to evidence that would also be highly relevant to advancing the criminal investigation.
The government also pointed out the illogic of Cannon’s concession that the Executive has urgent need to conduct its damage review, while unilaterally deciding that they cannot conduct a criminal investigation.
The Court appeared to recognize that a sufficient showing of need can overcome potential assertions of executive privilege by specifying that the government may continue to review and use the classified records in its classification review and national security risk assessment. D.E. 64 at 22-24. That aspect of the order reflects an implicit determination that no potential assertion of executive privilege by Plaintiff could justify preventing the Executive Branch from conducting that review and assessment of the classified records. But under United States v. Nixon, the same is true of the review and use of the information by the government in an ongoing criminal investigation. And it would be especially unwarranted to prohibit that review and use while authorizing other personnel in the Executive Branch to review and use the same information:
All these things are likely to cause her heartburn — and Trump even more! In her opinion last week, Cannon at first denied she was minimizing the import of an ongoing criminal investigation — but then dismissed precedent on the problems with doing that.
None of this should be read to minimize the importance of investigating criminal activity or to indicate anything about the merits of any future court proceeding.
The Court is mindful that restraints on criminal prosecutions are disfavored21 but finds that these unprecedented circumstances call for a brief pause to allow for neutral, third-party review to ensure a just process with adequate safeguards.
21 See Younger v. Harris, 401 U.S. 37, 43–44 (1971) (“[C]ourts of equity should not . . . act to restrain a criminal prosecution when the moving party has an adequate remedy at law and will not suffer irreparable injury if denied equitable relief.”); Stefanelli v. Minard, 342 U.S. 117, 120 (1951) (explaining that “[t]he maxim that equity will not enjoin a criminal prosecution” applies with greatest force in the context of the federal government interfering with state prosecutions).
If she refuses to let DOJ continue its investigation, which I think is quite possible, it’ll make her intent in objecting — halting any criminal investigation, into Trump or anyone else — all the more clear.
And this motion affirms that the investigation will continue regardless of what Cannon decides (though establishes how much her order is impeding it).
For example, the government does not understand the Court’s injunction against the government’s review and use of seized materials for criminal investigative purposes to prevent it from questioning witnesses and obtaining evidence about issues such as how classified records in general were moved from the White House, how they were subsequently stored, and what steps Plaintiff and his representatives took in response to the May 11, 2022 grand jury subpoena. The government also does not understand the Order to bar it from asking witnesses about any recollections they may have of classified records, so long as the government does not use the content of seized classified records to question witnesses (which the Order appears to prohibit).5 Even so, the prohibition on the review and use of the classified records is uniquely harmful here, where the criminal investigation concerns the retention and handling of those very records, with the concomitant national-security concerns raised by that conduct.
She’s on notice now that she has not succeeded in killing the investigation. She may take further steps to do so, but those, too, would be all the more outrageous if she did.
Finally, and perhaps most effectively, DOJ implies they intend to brief Congress on what Trump stole.
The government also does not understand the Court’s Order to bar DOJ, FBI, and ODNI from briefing Congressional leaders with intelligence oversight responsibilities regarding the classified records that were recovered. The government similarly does not understand the Order to restrict senior DOJ and FBI officials, who have supervisory responsibilities regarding the criminal investigation, from reviewing those records in preparation for such a briefing.
All the Republican members of the Gang of Eight have demanded such briefing, so it’d be hard for them to refuse to receive it. But my guess is this would badly discredit Cannon’s effort to thwart the investigation into Donald Trump.
To refuse this order, Aileen Cannon is going to have to assert that the Federal Government doesn’t own its secrets. I don’t rule out that she’ll do so. But if she does, it’ll make an appeal far more modest, and her malign intent far more obvious.
Update: Attempted to correct the relationship between the appeal of a stay and the appeal proper.
I was sure that Cannon would not budge. But now she has ordered Trump’s team to respond by Monday at 10:00 a.m. and has ordered parties “to consider Defendant’s position as to the approximately 100 documents discussed in the Motion for Partial Stay” in their joint filing due tomorrow. That suggests to me that she is seriously considering granting the partial stay. But if not, I agree with you (of course) that the filings significantly improve the DoJ’s tactical position moving forward.
Well there goes my plan to avoid prosecution by sticking expired credit cards in my bricks of cocaine.
Amongst various points @AWeissman has made on Twitter about the recent filings is this one
“The new DOJ motion by focusing on exempting classified documents from stay, puts front and center whether Trump will now allege that he declassified these documents.
In short, he won’t because he didn’t; and he will not want to test this in court, even with this judge.”
It isn’t clear to me that the filings indeed push Trump to confront the dilemma in the way AWeissman has posed it: does this amount to a “put up or shut up” moment?
But I am probably missing something
In my (quick) read that’s not how DOJ is using classification, for the most part. They’re mostly saying, If CLASS then USG, to get beyond issues of ownership.
Thanks for reply
Your explanation seems entirely logical to me.
In the morass of gobbledygook introduced by Trump his allies and his lawyers doing bad lawyering, it is not always easy for observers such as myself, to see how the DOJ might maximise the opportunities teamTrump present to be skewered with their own idiocies.
I can readily see how the motion to unseal the status report exposes one contradiction in the Trump position which Cannon’s opinion had endeavoured to obscure.
But I simply couldn’t fathom the point AWeissmann seemed to be making.
Thanks for all your work in bringing clarity to the often complex nuances of these events.
Is the DOJ motion for tactical reasons leaving out other documents that might also be government property–those not marked classified but rightfully belonging to NARA, like correspondence?
I still don’t understand why a 41(g) doesn’t have to go through the judge presiding over the warrant. Would any other suspect be allowed to file with an arbitrary judge from the same Circuit like that?
Those with training in the law should correct me on this, but my understanding is that the federal magistrate (Reinhart) who granted the search warrant is a lower-ranking official than the federal judge (Cannon) who is now involved, and that he (Reinhart) is in a sense “linked” with Cannon (as well as a few other 11th circuit judges), such that when matters proceed beyond a certain point they are going to be addressed by one of those judges. Whether Cannon was a random pick or carefully selected by T***P lawyers I do not know, though I suspect the latter.
I remember when Trump first filed the suit. He bypassed a good number of judges to get to Cannon. It was deliberate.
[Welcome to emptywheel. Please use a more differentiated username when you comment next as we have more than one community member named “Faith.” Thanks. /~Rayne]
And what do you base that on exactly?
Because the issuance of a warrant is essentially a criminal matter.
41(g) is a *separate* civil suit that does not (have to) contest the issuance of the warrant itself. The purpose of 41(g) is (more or less) to get a court to weigh in on the return of seized property.
But the original filing by Trump didn’t even ask for 41(g) relief. It asked for an equitable appointment of a SM in part so that Trump could determine whether there was a basis for 41(g) relief. Which is kind of nuts.
It’s hard to understate what a mess of an opinion Cannon’s was, both in terms of law and facts. Lawfare’s got a good writeup if you’re curious.
But the *concept* of going to the SDFL and having a randomly assigned judge engage in oversight is absolutely fine. That’s how it’s supposed to work. Provided of course, the facts warranted such. . .and here they just don’t.
Yes. And hi, welcome to Emptywheel. Chime in more often please. It is hard to understate how bizarre the attempt to use civil process to halt a criminal investigation is. And, if there is ever a case for it, this is certainly not it.
In fact, one of Trump’s lawyers (Trusty or Kise) said in court that he was *not* making a 41(g) argument. It looks to me like Cannon decided he should have, and did it for him. Which is not a thing I thought judges did, or were supposed to do; at least none have in any of the rulings I’ve read.
Isn’t this similar to something the Supreme Court has done from time to time recently, where a case comes to them presenting Question X, but they see it as an excellent vehicle to address (and probably overturn existing law on) a much bigger question? I believe the SC will generally do this by asking the parties to brief the larger question instead of just going ahead and deciding it, as Judge Cannon appears to have done here. To my mind, this seems to telegraph a mission much more political than the alleged calling of balls and strikes, maybe even judicial activism. However, I am not a litigator of any sort, so I could be misunderstanding what goes on in the courts.
Forgive my ignorance of law and law jargon. You said, “the investigation will continue regardless of what Cannon decides” and “she has not succeeded in killing the investigation”. But what I read in the block quotes were just statements that “the government does not understand”. Are you saying “does not understand” is equivalent to “will not obey”?
It struck me as a convoluted way (probably jargon) to say: The government is reading the order as still allowing us to do x, y, & z, that is, their reading is that the order does not prohibit them from doing x, y, & z.
Correct. Basically, DOJ is saying, “we’re putting you on notice how we have read your order. If you mean it more broadly you need to tell us.”
In which case she’d have to lay that out specifically which could be more costly for her.
I took it to be “we read it as X, but that seems batshit insane, so certainly something is cray-cray, tell us if the moon really is plaid with polka dots…”
I think this: “The government also does not understand the Court’s Order to bar DOJ, FBI, and ODNI from briefing Congressional leaders…”, could be written as: “The DOJ, FBI, and ODNI intend to brief Congress as we understand the Court’s Order does not prevent this.” With an implied “if that’s incorrect, you better let us know!”
And, also, “by all means tell the Republicans in Congress who’ve been demanding a briefing you have more equities than a co-equal branch of Congress.”
Thanks for the question and all replies. These passages caught my eye too–hard to miss the repetition of “the government does not understand …”! I thought it was DOJ’s way of saying without saying it that Cannon had failed to do her job; I stand corrected and educated.
So called white-collar criminals often “hide” that is, mix incriminating documents in with personal documents, in the hopes of stymieing, or stalling an investigation. It’s odd that few people are mentioning this.
Trump’s slovenly record storage may have had a purpose beyond his being a lazy packrat. Maybe he learned it from one of his gangster pals.
This is exactly how I interpreted the comingling. At best it’s negligent and sloppy, but most likely it was intentional to a) potentially obscure the documents from being discovered in a search “oh, look, a MAGA shirt, these are personal items, there must not be anything in here” or b) creating a scenario just like the one we’re facing in which the ownership of the items are questionable and slows the proceedings down
Elizabeth de la Vega has been bringing up this behavior as something she’s seen before.
It’s been a frequent refrain here.
I thought that as well in a comment a couple of posts back. For me there seems to be a randomness to the commingling, in that it’s not always contemporaneous junk in the boxes or intuitively related. That tells me stuff was thrown in to taint the contents and that in turn tells me this was done relatively recently. Perhaps Mr. Bratt’s visit started the process?
I have training in medicine, not law. If this is out of her jurisdiction, why doesn’t the DOJ use that fact and move it all to DC? Thanks in advance.
that was one of my big questions as well. IMHO, the DoJ should just have gone to theDC judge supervising the Grand Jury investigation, and ask that he order all the classified materials to be immediately provided to the GJ because it was responsive to the May subpoena.
I don’t see how Cannon has ANY authority over that Grand Jury, and compliance with that subpoena, and the DoJ should just tell her to pound sand..
That judge in DC is Chief Judge of the DC District Court, Beryl Howell. Not a dude.
i was wondering something similar but was a bit scared to ask. I understand that the Presidential Records Act requires actions/motions to be brought in Washington DC.
If Cannon is stepping on DC’s jurisdiction, do they have the right to step up and say. ‘Oi, you, that’s our case, give it ‘ere.’ (In more legalistic language, of course.)
Apologies if that’s already been answered in the comments on another thread.
She’s a Judge assigned to Florida overseeing the matter of a search of a Florida resident at a Florida property in her district. She’s not without jurisdiction over the broad contours of this suit. There are some sub-parts of this case that might demand DC jurisdiction. For instance the PRA states:
“The United States District Court for the District of Columbia shall have jurisdiction over any action initiated by the former President asserting that a determination made by the Archivist violates the former President’s rights or privileges.”
which is maybe implicated if Trump tries to claim Executive Privilege, since the Archivist has already determined back in May he doesn’t get that. Cannon would still have jurisdiction over other parts like Trump’s claims the FBI should return personal medical records. There’s a whole morass of different claims and disputes bubbling underneath the surface demand for a special master.
But the fact is, we haven’t yet reached the stage of action where you can even cleave off parts of the case like that, because Trump has remained absurdly cagey about any particular claims. He hasn’t yet claimed personal ownership or EP over any particular document seized, except for his ownership of his already returned passports. And so far Cannon has matched the vagueness, ordering there should be a special master, but not yet committing to any ruling on what is and isn’t in the scope of that review.
Thank you, that’s clarified things. As a non-lawyer these details often elude me :-)
Per David Bowie:
Stay just a little bit longer
Please, please, please, please, please tell me that you’re gonna
You won’t need too much persuadin’
I don’t mean to sound degradin’
But with a face like that you got nothin’ to laugh about
Red lips, hair and fingernails
I hear you’re a mean old Jezebel
Let’s go upstairs and read my Tarot cards, come on, honey
Stay with me, stay with me
For tonight you’d better stay with me, alright
Stay with me, stay with me
For tonight you’d better stay with me
tie your shoe!
… but you can’t put it on.
thanks, marcy. i’m sure it all will be worth our running on fumes.
Now that reminds me of the old counting-rhyme!
One, two, buckle your shoe.
Three, four, lock the door.
Five, six, play your tricks.
Seven, eight, scream your hate.
Nine, ten, do it again.
Eleven, twelve, dig and delve.
Thirteen, fourteen, crimes reporting.
Fifteen, sixteen, get a taint team.
Seventeen, eighteen, lie a-waiting.
Nineteen, twenty, charges plenty!
Please feel free to change and improve on this!
Trump’s lawyers claim that DOJ is doing an end run around the Presidential Records Act (PRA). In their oral argument they repeatedly referred to “Presidential records in the hands of the 45th President.”
But the term “Presidential records” is defined in the PRA and specifically excludes any materials that are official records of an agency — even if they were received by the president. (44 USC 2201(2)(B).)
Doesn’t that mean that the classified documents were never Presidential records in the first place, were never owned by Trump or NARA, and were never subject to the PRA?
If so, then they were purloined from the federal government and/or not returned when requested (or demanded under subpoena). Which, if there is *any* significant defense-related information in them that could work to the detriment of the U.S.A. or the advantage of another sovereign state, violates the espionage act (18 USC 793?) as charged. Not a lot of wiggle room there.
If the President writes on the record than it becomes both an agency document AND a Presidential record. Not clear what you call it per se if he President rips it up and flushes it down the toilet; is suddenly a Presidential record then?
Reading that was very satisfying; thank you for giving your analysis. Like everyone else here, I admire your work.
I just saw that Lawfareblog has an article out on the major flaws in Cannon’s ruling, for those who haven’t seen it yet: https://www.lawfareblog.com/everything-wrong-judge-cannons-ruling
Saw it just a few minutes ago. Very helpful. Maybe a bit tangled in places but still takes a bulldozer to the opinion.
I still think Cannon has accomplished exactly what she wanted: in the short run she’s thrown a monkey-wrench into the investigation, and in the long run she has secured her star high in the right-wing firmament. She’ll have a more successful and lucrative career in a wingnut-welfare think-tank (“Dear Mr. Leo …”) and as a right-wing media commentator than as a lifer on the bench. (Unless of course she’s appointed to the Supreme Court under Trump II.)
Your view makes sense to me, bbleh.
For those interested, Politico has published another takedown of Cannon’s ruling in this morning’s playbook, including a simple analogy (jewelry heist) that highlights the absurdity of her position in terms everyone can understand:
The motion to unseal sounds like another “dog catches car”.
Marcy, has there been any speculation that Trump did, in fact, classify personal communications with his personal lawyers as “Top Secret?”
The scenario might be that Trump tried to hide his efforts to evade his two impeachments, perhaps by committing more crimes, and then classifying them as Top Secret and taking them with him. There’s no real logic there but it’s something I could see him trying.
So now, the DOJ is saying, “great, you took these classified documents but since you classified them they belong to the government. Now hand them over!” and Trump is realizing that he can’t also say they are attorney/client because he should never have classified them.
Just a thought.
See my next post.
Thank you, it’s what immediately came to mind about this. In some ways, it could make the documents seem less dangerous. But on the other hand, it’s pure obstruction of justice.
As I pointed out in comments here several days ago, the obvious move for DOJ was to avail itself of F.R.App.Pro. Rule 8, covering motion for stays pending appeal. The first step is filing with Circuit Court a notice of appeal. The appeal must concern an appealable order of the district court. Not all interlocutory orders are appealable but the issuance of an injunction against the government happens to be one that is appealable. That’s why at the hearing a week ago Jay Bratt asked Cannon to include an injunction if she was going to rule in Trump’s favor. The injunction was issued and the government has now filed its notice of appeal.
Next, under the federal rules, the motion for stay must be addressed, in the first instance, to the district court. The government has also done that. And it has wisely included a declaration from an FBI assistant director concerning the practical impossibility of separating the criminal investigation from the ODNI damage assessment. From the moment I saw Cannon’s order, I knew the government would want to beef up the factual record on this key issue. It will carry weight when the 11th Circuit gets involved.
Unless Cannon modifies her order in a way the government can live with, and I don’t think she will (she has already denied a request by former prosecutors to file an amicus brief!) the next step is for the government to make a motion for stay to the Court of Appeal. Here I must contradict Marcy: there is no “second appeal.” The already filed notice of appeal establishes the one and only appeal and appellate case number. What will be coming, instead, is a second motion for stay. In other words, the federal rules do not permit a motion for stay to the Court of Appeal until the appellant takes a shot at the district court first. Generally, if the district court does not grant the motion for a stay within a certain time period, the appellant is then freed up to ask for the same stay from the higher court.
This approach, as I noted earlier this week, was pretty obvious and makes a lot of sense for the government. If the 11th Circuit denies the motion for stay, DOJ will know which way the wind is blowing. DOJ wouldn’t have to give up the appeal, technically, but it would not be holding its breath waiting for a good result months down the road. In all likelihood, the DOJ would principally focus on moving the inane special master process along, on doing as much investigation as it can do, and perhaps on bringing a collateral attack under the PRA, to be filed as an action for declaratory relief in the D.C. district court.
I agree with Arteberry. Your post is well stated. The stay motion read like a part of the Opening Brief in the 11th Circuit. It also seems designed to educate Judge Cannon about how far she truly overstepped, legally and factually, in her order. Do you think the DOJ will seek expedited proceedings in the 11th?
Things always appear a little more obvious when you don’t have to think through them and their alternatives, do them, and live with the consequences in many jurisdictions.
Thanks. I cede to your professional understanding of the process.
Doesn’t the stay, though, get expedited review?
I’m not sure what the 11th Circuit’s own rules provide (the circuits have their own rules) but a motion for stay may go to a three judge panel, if time permits. Or it may be assigned to a single judge. The motion is considered pretty quickly, since it’s all about protecting the status quo ante. With the government, national security, and Trump involved, the Court of Appeal will act quickly, for better or worse. It’s possible that the three judge panel for hearing the motion for stay would then become the three judge panel for hearing the full appeal on the merits. After that, it could be considered en banc by all 11 judges.
The 11th Circuit should give the stay immediate attention once it is filed. I’m assuming the appellate court will request a response to be filed by opposing counsel. Briefing, argument and an opinion on the underlying legal issues could be done on an expedited basis if the circuit orders it. Maybe someone with recent 11th Circuit experience in this area could weigh in.
Regarding the amicus brief, here’s what bmaz had to say the other day:
September 6, 2022 at 2:21 pm
“Good. She should have. You don’t really file amicus briefs in a trial court, you intervene if you have a valid interest. These clucks were filing the equivalent of an internet letter for publicity seeking.”
The “Former Prosecutor’s Amicus” filing was asinine and destined to be denied. Internet letters and petitions are worthless. What DOJ “should” have done is file a criminal charge in DC or sought to move the case there. Playing in the 11th Circuit sandbox is ludicrous. Have to assume it goes to whatever the 3 judge hot motions panel is. Does it stay with that same three after that, no clue, but it might. Every thing about how Garland is handling this is playing straight into Trump’s hands. What a nightmare. Also, too, since when do you get to attach new factual declaration to a post opinion motion without leave?
Any theories about why they didn’t?
No, not really. Trump wants delay. If there is going to be delay, fight on your own ground, not his.
It’s not as if using abusive delays is a novel tactic for the TFG. He’s been litigating like that for half a century.
‘fight on your own ground, not his’
I thought that had a ring of Sun Tzu’s Art of War about it but maybe it’s just common sense?
It seems to be what Bratt is trying to do, bit by bit. He knows Cannon is carrying water for Trump but he is trying to pop a few holes in her flasks/bags/whatever.
I’m sure he knows Trump has, as the earl reminds us below, made a career out of delay and obfuscation, and is conscious of working around that as best he can.
Ok, shoot me now ;-)
You mention going ahead and charging Trump. Seems like they have him and a few associates dead-to-rights with mishandling classified documents and obstruction. Why not go after them on that right now? Would it put an end to further investigation and potential prosecution?
I honestly do not know. Even enough to speculate. But could you file one criminal charge in DC now. and supersede or dismiss later? Yes, I think so.
It would take a heap of courage!
Also bandwidth. I think this is about drawing out Trump’s counsel statements in court as long as possible for further investigation…now that someone in 11th Circuit decided to help Team Twitler. This is where Cannon came in and started to carry water for Trump counsel so Trump counsel wouldn’t be making the ludicrous statements that would get Twitler and them into even more hot water? In my opinion, that’s obstruction of a national security investigation under the Espionage Act by a Federal judge…but I’m not a lawyer and my opinion means spit here. On her side of the argument is the fact that US Courts are supposed to assume innocence of any party before them until persuaded otherwise. In this, the USG has to overcome that bar in a logical and coherent fashion. Carefully. Meticulously.
I thought Part II and the Kohler declaration were important. The DofJ and the FBI are not going to fall in the trap of using investigative resources prohibited by the current order. The attempt to poison all the classified documents is obvious and that has stymied the investigation as Part II explained.
To be sure, they’ve got plenty of other stuff to investigate when it comes to Team Twitler so pretty sure efficiency will be maintained in the investigation for now, wonky judge rulings and stays or not.
Yeah, this isn’t really built to give Cannon an off-ramp — they know who she is now — but to give the 11th CCoA one.
My best guess is that she’ll deny it without explanation, but she might be brazen enough to say that the burden is on the government to prove that a document marked TOP SECRET/SCI is actually classified.
(I’d also like the govt to nominate Obama as special master.)
I’m pretty sure that’s a poisoned chalice Mr. Obama will let pass by.
Lol, do you know who and what the 11th Circuit is??
Is this a question or do you know the answer? The 11th is not a great place for DoJ to be. Before it was split, the 5th was highly regarded. Quite a group. I was friends with the former CJ of the 11th for many years. He came from the 5th. Remarkable man.
We didn’t talk politics much but one day over lunch, he volunteered that he thought Trump was laundering money. Somehow, we have progressed with Trump from money laundering to plotting the overthrow of the government. Quite an extraordinary accomplishment for a former President.
All the money laundering issues seem to have disappeared. Assume it’s a triage situation, go for the worst first and hope you can get to the rest later. Or maybe after sedition, money laundering just isn’t worth the effort.
Let’s see how this latest move by Garland works out. Not ready to second guess him quite yet.
Not sure if it is at all relevant here, but the 11th did OK on Pearson v. Kemp.
Somebody remembers the money laundering: https://www.nytimes.com/2022/09/08/us/politics/trump-save-america-pac-subpoenas.html
AIUI, they’re looking at whether money that was supposed to be for legal actions instead went to his personal expenses (and other personal uses). Grift, in short.
Oh, I know the answer, at least to my eye. That is interesting, and thanks. But the current 11th is more like the current 5th, which once was, as you note, not horrible at all. As with the 5th, the 11th has also changed. Personally, I thought the 11th bad under Tjoflat, and since, but it is far worse now. DOJ should never have been playing there, leave serving a warrant. But Garland is mucking this up royally.
Other than taking this as a criminal matter to the DC Circuit, what else should he be doing that he ain’t doing? I know he should be quieter about this investigation, etc. That’s a given. But, what could he do, the gist, the thrust in all this, to make it better?
“this motion affirms that the investigation will continue regardless of what Cannon decides”
This is what struck me — and I guess the big question is if it may be more than just sabre rattling. There’s a real possibility that they are preparing to uncover more information which could end up making Cannon look even worse. They may have information already in hand which they are waiting to reveal. They may be prepared to expand the case in ways which go beyond just the set of potential crimes discussed so far.
I think there may have been too much linear thinking by Trump’s defenders in terms of focusing just on the MAL boxes, and they may not, possibly not, see a bigger trap.
What a fucked up load of half assed horeshit. Garland has screwed up every way possible since applying for, and executing, the search warrant. Simply cowardly and pathetic.
I’m glad you relaxed during your holiday in Mexico.
Lol, I was not there on holiday. Did interrupt a lot, on a lot of fronts, though and was extremely tiring.
Isn’t this the kind of comment that you would question others for making without explanation? I know your opinion of Garland in general from comments on other posts, but what about this, other than the fact that he’s still allowing Trump’s camp to fight in their chosen arena, is “half assed horseshit”? Those of us who aren’t lawyers would benefit from understanding the “why” behind the comment.
All of it post execution of the search warrant.
I am surprised to see you writing that. Because I think of Garland as a pathetic figure in a comic opera singing his No One is Above the Law song, but no one can hear him because the chorus is hip hopping Oh Yes We Are, with a band playing.
So, when Cannon denies this motion, I don’t think there is more than a snowball’s chance in Florida, she will accept it (IANAL, but this whole Cannon side show smells of corruption or at least heavy bias in favor of the singular crime wave that isn’t a coordinated plan of action), the matter is appealed to the 11th, correct. And I believe, Trump placed the majority of that judges, correct? And I believe Thomas is the SC Justice for the 11th, correct?
I think people are going to be very very unpleasantly shocked at the judicial system as this goes forward. I strongly suspect that the efforts made to shield Trump will continue through the 11th and to the SC-despite the clear and cogent arguments that the DoJ is making.
I’ve suspected all along that the end goal for the Trump camp is to have the SC declare he has privilege over these obviously USG owned documents. It seems to me that is the only thing that will protect Trump from criminal liability.
Holy crap, it really is Thomas. But I’m thinking the case can still get to SCOTUS after a brief delay.
Don’t worry about Thomas being the initial hot judge on an approach to SCOTUS, even Clarence would refer it to the full court. Worry about the full court.
Of interest is DOJ’s concern that there may be other as yet unidentified and unaccounted-for documents, as suggested by the large number of empty classified folders.
I’m not sure the folders themselves will help much to identify missing documents, unless they contain control numbers or titles that identify the documents once contained in them.
The way to identify any missing highly classified documents would be for the IC to check the tracking records which should be kept on each such document. They should show exactly to whom such documents were given and when and whether they were returned to the document control officers. The folders marked return to staff secretary/military aide suggest that these two may be the control officers for any documents going to the President. The staff secretary is a political appointee and who knows how diligent he/she might be in keeping proper records. The military aide, on the other hand, should be well versed in the proper handling of classified records.
Where would these logs be now? With the national archives? or perhaps with the White House Communications Agency, which is staffed by professional military personnel? While some documents might be couriered to the President, I believe the classified documents that are received electronically would go through the WHCA. I don’t have a good idea of the chain of custody here, only the general experience that such documents should be accounted for in written logs.
I saw yesterday-I believe on Marcy’s Twitter feed-that the DoJ is looking to unseal more of the MAL search warrant affidavit, particularly what they got back when they subpoenaed for video surveillance of the storage area. Would that information have any bearing on DoJ’s calculus for how to respond to Cannon or why they might not just go ahead and file charges?
Ugh. Why don’t they just take one or two seized controlled USG documents to Cannon and ask to introduce them to her en camera with one opposing counsel cleared to see them? This should be in DC Circuit in all likelihood instead of her court…
Marcy’s post from today “DOJ with one card left to play” gets at this I think. She suggests, if I follow, that perhaps with more unsealing the DOJ hopes to show Cannon some of the underlying obstruction, even from Trump’s lawyers. Thus convincing her of the error of her ways and making it more likely she’ll split off the classified material from the special master process. Although TBH, as a non-legal/nat sec reader, I tend to feel like I’m fishing for tarpon with a push-button Zebco. So I could be getting it wrong.
The other interesting thing in her recent post is it seems Trump, intentionally or not, is ensuring the GOP goes into midterms having to focus on Trump. For the non-MAGA GOP, he’s making breaking up hard to do.
Remember how Hillary Clinton had all sorts of documents on her server that were subsequently classified?
Are ALL the documents seized from Trump being subjected to a classification review? From the way I read the filing, the DoJ is willing to provide Trump with “copies of all the unclassified documents recovered during the search”. Is the DoJ being deliberately ambiguous here — and planning on not giving Trump copies of anything that was not marked “classified” but included information that was subsequently deemed classified?
I am so glad I found this blog. Your analyses and insights are invaluable, really help to relieve (some of) my anxieties.
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We have the soprano performing the judges role, singing off key and mangling the lyrics, which is not easy for a trained performer.
The obese self appointed monarch, padding around in his slippers and ermine lined bathrobe, with a overly long red tie. He appears in every scene and sings the same tune;
And the quiet AG, who gets drowned by multiple choruses when the AG tries to sing: No One is Above the Law.
Ahh, but that’s the second Act; we haven’t seen Act Three. This member of the audience is still hoping to see the AG triumphant, with the third and final repetition of his aria.
I just wanted to get the hell out at intermission?
Lol! ‘Beam me up, Scotty?’ I used to have a pin that made the appropriate transporter noises when I slapped it, but it never worked. Still here, and we’re a long ways from the Star-Trek world (and I’m not even thinking of the technology).
Apologies for switching metaphors on you!
I believe the Presidential Records Act provides that the D.C Circuit handle cases regarding executive privilege. I don’t think Cannon is on strong legal foundation regarding her ruling or standing in the case.