Judge Aileen Cannon Deems Grand Jury Subpoenas Toilet Paper

In Judge Aileen Cannon’s order blowing off national security in favor of Donald Trump’s claims of being a victim, she never once names the crimes under investigation.

Not the Espionage Act, 18 USC 793.

Not removing government documents, 18 USC 2071.

And definitely not obstruction, 18 USC 1519.

Her silence about the crimes for which a magistrate judge found probable cause is critical to the scheme behind her order.

That’s because — in a breathtaking paragraph — she suggests that the classification marks on the documents Trump stole are up for debate.

The Motion primarily seeks a stay of the September 5 Order insofar as it temporarily enjoins, in conjunction with the Special Master’s review of the seized materials, approximately 100 documents “marked as classified (and papers physically attached to them)” [ECF No. 69 p. 2 n.1]. In isolating the described documents from the larger set of seized materials, the Motion effectively asks the Court to accept the following compound premises, neither of which the Court is prepared to adopt hastily without further review by a Special Master. The first premise underlying the Motion is that all of the approximately 100 documents isolated by the Government (and “papers physically attached to them”) are classified government records, and that Plaintiff therefore could not possibly have a possessory interest in any of them. The second is that Plaintiff has no plausible claim of privilege as to any of these documents [ECF No. 69 p. 7 (categorically asserting that the “classified records at issue in this Motion . . . do not include personal records or potentially privileged communications”)]. The Court does not find it appropriate to accept the Government’s conclusions on these important and disputed issues without further review by a neutral third party in an expedited and orderly fashion. [my emphasis]

Had she discussed the Espionage Act, she might consider that it doesn’t matter whether Trump claims to have declassified the documents. What matters is if they are National Defense Information.

Cannon’s silence about obstruction is even more outlandish. No one contests that these documents are marked classified! Trump has not even formally contested they’re classified. But the entire question is what to do about documents marked classified.

If the are marked as classified — which no one contests! — then they were responsive to the May 11 subpoena. And if Trump withheld documents responsive to the May 11 subpoena, he committed the crime of obstruction.

And that’s why Aileen Cannon doesn’t want to talk about the crimes under investigation here. Because once you do, then there’s no question but those documents marked as classified are either evidence of the crime, Espionage Act, or the crime, obstruction — and probably both.

Go to emptywheel resource page on Trump Espionage Investigation.

193 replies
  1. Fiendish Thingy says:

    Longtime (since FDL) reader, first time poster;
    I’m assuming DOJ won’t simply shrug and go along with this insanity, and will appeal Cannon’s ruling to the 11th Circuit.
    I don’t expect Dearie to get his mitts on the 100 classified documents anytime soon.

  2. Commander Ogg says:

    What is the remedy for a Federal Judge who ignores the clearly stated statues of the United States Code. Is this Inspector General territory? Is the Judge so arrogant and full of herself that she thinks she can make these BS rulings without consequences? I mean how much power does she have?

      • Troutwaxer says:

        The exact problem with our country is that impeaching Judge Cannon is “implausible.” This judge is clearly and obviously scum. To have her as a member of our Federal Judiciary lessens all of us.

        • J R in WV says:

          Perhaps a Grant Jury indictment of the judge for obstruction of justice would get her attention… Making Judges Get Attorneys?

          Hard to do the judge thing from a cell.

          IANAL, but can have fun dreaming about good legal things, even if they are imposible.

        • bmaz says:

          Where in the world does this crap come from????? Nobody is going to indict this judge. Please stop with that garbage.

    • Commentmonger says:

      I also would like to know this. What is the context of if she can be held accountable? Why doesn’t the judge who already has been handling the case make a ruling to ignore her??

      • earlofhuntingdon says:

        The remedy is the same as for every other judgment or appealable decision by a federal district court that one party doesn’t like. File an appeal. Here, the 11th Cir. has to take it. The S.Ct. would have the option of accepting or declining an appeal from any 11th Cir. decision.

    • Lawrunner says:

      The (eventual) remedy will be the executive branch simply ignoring the judicial branch.

      I recently opined that we would see this within 5 years.. I’m more inclined to think it will be within the next several months.

      There is no constitutional basis for one branch of government to claim a clearly defined power of another branch. The judiciary is doing so on many different issues. It’s radical, and frightening; because the only recourse is to ignore the judicial branch.

      One would think the judicial branch would want to protect it’s legitimacy to prevent such an outcome because it has ZERO enforcement powers of its own… I guess Roberts decided to be the one to watch the third branch die.

      • timbo says:

        It’s not clear that his is Robert’s doing at all. It’s more about folks like McConnell being bent on jaundicing the Federal judiciary to the point where a corrupt Federal bench may be the norm.

        • Lawrunner says:

          SCOTUS is the final arbiter when it comes to legal ethics of the judiciary. So, it is definitely on Roberts, in the role of the SCOTUS Chief Justice, for allowing a culture of judges ignoring clear conflicts of interest (including members of SCOTUS).

        • timbo says:

          What can he do to stop other SCJs from doing what ever they want? What legal remedies does he have to rein them in? He can’t fire them? How would he reprimand or punish them in some way that would get them to be behave ethically or morally, let alone honor their oaths of office?

          No, what we see at the moment are some justices ready to start wielding power that is not easy to check without a strong Congress and Executive branch to fight off sedition. The institutions that would normally be a check on such power are weak and or divided at the moment. The Chief Justice could ask for help from those weakened institution, but that’s about the extent of his real power here…

          To be sure, Roberts has a lot soft power here. He could ask that the Congress consider impeaching a Federal judge or Justice. That’s something that might make things clearer as to the seriousness of the problem. He’s highly unlikely to do something like of course…

      • Justsomeguy says:

        In my semi informed opinion, protecting the veneer of legitimacy was important for the past 40 years of long game conservative strategy, I say veneer, as it was mostly rubbed off on the way to achieving that goal, via corrupting the appointment process in order to get more religious zealots on the bench.
        Now that that goal has been achieved, legitimacy does not matter at all, what matters is forcing through as many undemocratic reversals of human rights that contravene religious opinion as possible, declaring that any Federal oversight of Monopolists and their interests is Unconstitutional cuz muh property rights(bye bye FTC), and getting the bogus ‘independent state legislature’ case heard and enshrined into law, since at that point, the rolling right wing coup is complete in all three branches of government as well as the states: it will become systemically impossible for conservatives to lose elections, or to enforce any checks and balances over their actions in power.
        Short of that right wing fever dream of a new Constitutional Convention where they can just retcon out everything they don’t like, that’s where we are headed.
        Afterwards, the Permanent Religious Supreme Court Majority, which is ideologically more Catholic Conservative than (checks notes) The Pope won’t need to pay lip service to legitimacy, you don’t need it when you have total power.

        I have a long memory, and I see a parallel to the days of Dubya’s supermajority in Congress, wherein committees of of the Democratic minority would just have GOP congressmen turn the lights off in the rooms they were meeting in: The Holy Majority will interpret the (religious) law, and the de fanged ‘loyal opposition’ Scotus Judges will get to keep their pretty robes and titles, so their quaint dissenting opinions can be reprinted for mockery in right wing media. Locking in permanent conservative minority rule despite every conservative policy proposition getting something like 27% democratic approval is The Whole Show, any supposed values and messaging are tools toward that; stage dressing to be used as needed and then discarded once the need for them is past.

    • timbo says:

      She could be criminally charged with obstruction if a Federal grand jury so order it. That’s clearly a ways off at this point…if even a remote possibility.

      • John Gurley says:

        The Constitution says Federal judges “serve during good behavior”.

        Wouldn’t an obstruction of justice charge or conviction necessarily remove a judge from the category of “good behavior”?

        • Kate says:

          Wow. As depressing as it gets.

          [THIRD REQUEST: You have used multiple usernames since your first apparent comment in October 2019: Cat, Kate Ellington, Cate E., Cate Ellington, Cate and Kate, across 16 comments. Pick one username and stick with it so community members get to know you. Using multiple usernames is considered sock puppeting. Using Kate or Cate is also inadequate as there are other community members with the same name. Pick a differentiated name and stick with it. /~Rayne]

  3. StevenL says:

    The Special Master is charged with making recommendations regarding assertions of Executive Privilege to the extent the parties disagree. Isn’t this way beyond the scope of typical SM duties, and one calling for explicit guidance from the court?

    • Howard Cutter says:

      As I understand it, not just beyond the scope of typical Special Master duties but literally unprecedented. How would a Special Master even make such a determination? Executive privilege is not an inherent quality that documents have, such as attorney-client privilege, but something that needs to be actively asserted by the Executive Branch, specifically the *current* President.

      • Paulka says:

        Just to clarify a bit, as I understand it, is that EP can be asserted by a former President, but the limits of said EP have not been adjudicated. I believe Nixon tried to exert such post presidency EP but got knocked down but that was a very limited case and not tied to national security documents. My fear is that this current judiciary will create EP for Trump

        • Howard Cutter says:

          Even if it did, EP exempts certain communications from review by the Legislative and Judicial branches. What version of EP allows those communications to be reviewed by a court but prevents them from being reviewed by a department of the Executive Branch? EP is entirely based in separation of powers.

        • timbo says:

          This. But let’s understand that partisan hacks like Cannon seem to be willing to destroy the legitimacy of the Article III branch to get there.

  4. rattlemullet says:

    Did the DoJ file an appeal today? Wasn’t today their self imposed deadline for an appeal? Lifetime appoints, eh? Shocking that such a poor resume can pass any judicial qualification to a federal court.

    • civil says:

      No, they only said “If the Court does not grant a stay by Thursday, September 15, the government intends to seek relief from the Eleventh Circuit.” Zoe Tillman of Bloomberg noted this evening that “Lawyers from DOJ’s Nat’l Security Division have been trickling onto the 11th Circuit docket in the fight over what happens next with the docs seized from Mar-a-Lago — Sophia Brill and Julie Edelstein made appearances in district court, appellate specialist Jeffrey Smith is new.” We can expect that the DOJ will file something soon with the 11th Circuit and ask that it be expedited, but presumably they’ll want to respond to the errors in Cannon’s ruling, so not tonight.

      • joeff53 says:

        The government has noticed and appeal and has sought a stay from district court, as a predicate to seeking a stay pending appeal. Now’s where the rubber hits the road. They can massage the papers they filed with Cannon (which she rejected) and file stay motion pretty quickly.
        This is where the rubber hits the road, folks. Trial courts for show, appellate courts for dough.

        • bmaz says:

          That is one of the dumbest statements I have ever seen in my life. More Tham 90% of law, actually FAR more, happens in trial and administrative courts. Have you ever been in a real trial court??

    • DryHeat says:

      DOJ has already appealed. They filed their notice of appeal on September 9. There is no indication that the appeal is limited to the classified documents. The notice says they are appealing from the September 5 order (granting the request for a special master, etc.).

      DOJ’s self-imposed deadline was for filing a motion for stay at the 11th Circuit. As far as I can see on the docket, they have not yet done that.

  5. TXphysicist says:

    What are some precedents for determining when a judge becomes complicit in the obstruction they are supposed to be judging the case for?

    And how far away from that line do you think we are, at this point?

    Like everything else about this case, the “unprecedented” nature of it is being knowingly leveraged by the Trumpists to do some serious boundary-pushing on that front, methinks.

    • Tom-1812 says:

      I think the coverage of this story has made far too much of the apparent “unprecedented” nature of Trump’s actions. There is nothing unprecedented about a thief stealing other people’s property, just as there is nothing unprecedented about a thief lying to try and retain the property he’s stolen.

        • TXphysicist says:

          Dude we are so far beyond Watergate that the comparison vastly minimizes how dangerous of a territory we are in. It’s not just this docu-theft case, it’s the sum total of Trump’s criming.

          I was very not alive at the time, but if anyone here lived through Watergate and it currently *feels* like Watergate, that is damning evidence of how badly the fourth estate, writ large, has failed this country. Trump’s crimes are on another order of magnitude (10x), if not two (100x-ish) vs. Dick Nix.

          I think the most important distinction is how complicit the GOP is (still!) in Trump’s fascist power grabs, vs. when they grew a spine and stood up to Nixon.

          Woo, doomer party!! Woooo!!!!!

        • timbo says:

          No. Watergate was very serious, so serious in fact that a popular President, much more popular than Twitler ever was, was forced to resign from office in disgrace. That didn’t happen because the crimes were lesser, although one might argue somewhat, as you are trying to do, that the huge number of crimes were different, in both kind and degree between the Nixon regime and the ongoing criminality of Twitler.

          And as for those degrees, perhaps you might want to look at the crimes that Cointel Pro undertook within the US, and what the CIA did in places like Chile, all directed by Nixon. Also, it is incredibly unlikely that Bill Barr got directly involved in money laundering, unlike John Mitchell, Nixon’s disgraced and convicted Attorney General.

          I’m not saying that Twitler wasn’t extorting all sorts of things out of all sorts of people, countries, multi-national corporations, etc. I’m just saying that comparing the two eras isn’t something where something was better or worse than, just that they were different and they were both worrisome.

          What is worrisome about the current scandals surrounding Twitler, is that an entire major party appears to be compromised in some deep way. It is riddled with Twisslerings and wannabe Twitlers. And that is where the danger lies ahead. It is grave in nature, and the nation’s institutions that might correct for it do not seem to be effective as they were during the Watergate era. In today’s US, the GOP openly stands for bullying and raw power, and not much else. That is very dangerous if that continues to be a norm.

          On the bright side, even with all the damage that folks like Twitler continue to do to the nation and our stabilizing institutions, we still have somewhat free and open elections, and we still have some vigorous civic engagement when it comes to things like abortion, and other issues of the day. What is sad is that many of the current issues of the day are basically in front of us because of anti-intellectual know-nothingism being given a big seat at the table.

        • bmaz says:

          What is “Twitler”? You comment constantly. Is it too hard to use real names? Is it too much to ask that the input here be searchable and understandable? Does it make you feel better to do that petty garbage? If so, why?

        • rip says:

          I was alive and reasonably sentient during Watergate. Even had the “joy” of meeting Nixon before his presidency and understanding my parent’s dislike of his character.

          While Watergate was an assault on another campaign and an abuse of presidential power, it was not the complete selling of the government’s power to other groups for personal gain.

          Watergate had the potential to install another (or the same) power-hungry individual/group, but Trump’s rolling coup was meant to overturn the government.

      • TXphysicist says:

        I should clarify: I’m referring to Trump’s propagandists citing the “unprecedented” nature of this investigation. Yes, the investigation is unprecedented, because no president in modern history (and certainly not in the Information Age) has done anything as remotely egregious and “unprecedented” as what Trump has done, here.

        Trump’s propagandists are using the “unprecedented” actions of the DoJ as Cannon fodder to justify an undue amount of caution and benefit of the doubt in Trump’s favor. “I trust Trump and Kash Patel over the word of the federal government, which btw I’m a judge for”. Ludicrous.

        I’m not going to link, but there was an absolute word-salad of an exchange between Hannity, Habba (one of Trump’s lawyers), and Greg Jarrett earlier tonight that lays bare exactly how incoherent their understanding and defense of the situation is. It was like listening to three unrelated conversations. Even the YouTube video text description made no sense. The liberal media (so, almost solely MSNBC, these days) never gets anywhere close to as good of an analysis as Marcy’s, on this site, but it’s at least somewhat intelligible.

        Fascism does not require ideological consistency. Au contraire, it is an circumvention of it, using emotional manipulations.

        Preaching to the choir, I’m sure :P

        • Ginevra diBenci says:

          I have noticed a few MSNBC hosts (Melber and Hayes, in particular) seem to be reading off of EW’s paper. At least taking notes here and there.

        • Stephen Calhoun says:

          This all (to me) transcends the crimes of Watergate. The Mar-a-Lago stolen NDI (etc.) docs affair has overshadowed for the moment the organization and incitement of the attempted violent overturning of an election.

        • Rayne says:

          At this point it looks like “Kate” is simply spamming this thread and not paying any attention to replies to her own comments.

          Tick-tock, “Kate.”

  6. P J Evans says:

    None of the docs she’s so concerned about are his personal property.
    She’s either corrupt or so easily fooled that she shouldn’t be a judge.

    • earlofhuntingdon says:

      Given her academic qualifications (Duke undergraduate, magna from Michigan Law), and about eight years as an AUSA in the SDFL, several of them as an appellate criminal lawyer, the only reasonable conclusion is that she’s corrupt.

      She seems to have adopted the drafting quality of Trump’s lawyers. Principally, that’s question begging, rather than tying facts and law together into a reasoned conclusion, and ignoring whole areas that do not fit her Trump-is-a-unique-victim schtick she seems to think is self-evident.

      • Coffae says:

        The ever so fragile idea of law is based on honor and truth. Bringing deception, self-interest, and greed in enough quantities will overwhelm our judicial system. It is time to take out the big guns and bring this dog to heel by closing loopholes and stopping others from opening bigger ones.

      • Cheez Whiz says:

        IANAL, but… everything I’ve read from her (on this site) says her process is “here is the conclusion I need to reach, here are the arguments/precedents I must address, now how do I get there?”. Corrupt is the best explanation that fits the facts,

        • timbo says:

          It’s worse than that. She’s being a legal advocate for a person who has yet to be indicted but might well be…if the investigation is allowed to run its logical course…in a case where apparent stolen national secrets are involved. She’s already intimated publicly, from the bench, that she’s helping Twitler because he might be embarrassed by being an indicted defendant. There’s nothing in the Constitution that protects Presidents or anyone else from being embarrassed if they happen to be caught redhanded committing crimes. Yet there Cannon is, arguing that that’s something that she needs to help prevent happen.

      • emptywheel says:

        Yes. She’s not incompetent. Far from it. She’s very competently exacting a price for DOJ’s decision to treat him as a private citizen.

        • Ginevra diBenci says:

          As opposed to what? How is he not a private citizen now? Or rather, how might DOJ construe his status differently?

  7. RMD says:

    at every violation of law, refusal to comply and ongoing obstruction, theft of and destruction of government documents….I am reminded of Bannon’s pledge to “deconstruct the administrative state” ….
    When observers note yet another outrageous act, what is often unacknowledged is that this is part of the whole game. A big f u to everything. Laws, procedures, traditions…. everything.

    • timbo says:

      That certainly appears to be what’s happening with Cannon and her crazy orders. She has some legal standing to make those orders but it’s incredibly thin ice…unless the entire 11th Circuit is corrupt, all the way to the Supreme Court?

  8. Patrick Ryan says:


    In Note 3 all her citations are for cases where warrant was issued on LAW OFFICES. Top drawer of DJT MAL beach resort is not a LAW OFFICE…

    [Welcome to emptywheel. Could you please do me a favor and confirm/deny you’re the same person who left this comment three days ago? I’m afraid I don’t have enough information to differentiate you if you’re not the same person; you’ve probably run into other “Patrick Ryans” before. Thanks. /~Rayne]

    • Pat Ryan says:


      Its a different Patrick Ryan. (Pretty common name) I’m changing my handle to
      Pat Ryan to differentiate if you want to post.

      Also, Cannon mis-cites to law office searches are mostly contained in Note 4 – not Note 3.


      In Note 4 all her citations are for cases where warrant was issued on LAW OFFICES. Top drawer of DJT MAL beach resort is not a LAW OFFICE…

      [Thanks for letting me know. Henceforth you are Pat not Patrick. Welcome to emptywheel. /~Rayne]

  9. bbleh says:

    She is proving herself a Made Woman. If the political winds blow favorably, she stays in the federal judiciary and is on the fast track for promotion. If they don’t, she bides her time and then decamps for some more lucrative opportunity, eg a Leonard Leo-funded “think tank” position or a “legal commentator” position for a big network (CNN is hiring right!) or perhaps a suitably endowed chair at, I dunno, Liberty University or something.

    I really don’t think it’s wise to judge her actions by the standards of most people who make / have made the federal judiciary a career.

  10. Lorenz David says:

    Thanks again for your insight, Marcy, you (and others on this site) help me make sense of this whole mess.

    Question for the lawyers here: Is there any way for the Justice Department to expedite an appeal of this outrageous order, or to appeal it directly to the Supreme Court due to FISA and other national security considerations? Going through the traditional process seems to play into Trump’s m.o. to delay.

    • earlofhuntingdon says:

      No. They would want to first lay out fuller arguments, which the stunted nature of the civil proceedings before Cannon has not allowed.

      • Peterr says:

        I suspect the DOJ has been drafting their appeal since last week in include all those fuller arguments, and a group of lawyers will be working through the night to tie that draft language tightly to Cannon’s specific rulings here. In the morning, other DOJ lawyers (who got some sleep) will read their work, polish it, and submit it to the 11th Circuit Court of Appeals sometime in the afternoon.

        • earlofhuntingdon says:

          I agree. I was responding to the question about whether the DoJ could appeal any decision by Cannon directly to the S.Ct.

        • timbo says:

          I beg to differ. It might happen if the national security situation is incredibly dire. We just don’t know. So far, it appears that DOJ has not publicly panicked over these documents. So, for now, publicly, there is nothing imminent threat-wise about the case national security wise.

        • earlofhuntingdon says:

          You’re taking Cannon’s arguments at face value. That’s like believing Trump when his mouth is moving.

          Governments – and people who used to date each other – frequently go out of their way to avoid admitting secrets are important when they fear they are no longer secret.

        • timbo says:

          I’m taking the DOJ’s behavior as what the DOJ’s public behavior has been so far. Or was your comment meant for someone else?

        • earlofhuntingdon says:

          You might consider that the DoJ’s rules ordinarily prevent public disclosure of its investigations unless and until it decides to indict and prosecute.

          It was Trump who publicized DoJ’s search, hoping to secure a political and/or fundraising effect. He and Cannon then made further disclosures for their own purposes.

        • timbo says:

          Since you’ve finally indicated that your statements have been directed at me, why are you hounding me about your own shadowy opinion that I’ve somehow taken Cannon’s statements at face value et al? Seems to me that you’re inventing my opinions for me and then attacking me for your own inventions. Stop that please.

      • Doctor Cyclops says:

        I know nothing of federal civil procedure, so here is my question: Given that this is a civil action brought by DJT, and there is a dispute as to the facts, why couldn’t DOJ just ask for an evidentiary hearing, subpoena DJT, and question him on the record?

        • earlofhuntingdon says:

          Cannon has declared herself to be on Trump’s defense team. The DoJ is better off now going to the 11th Cir.

  11. Jerry says:

    One wonders how far we are from a straight-up coup of the judicial system:

    “The court rules ipso facto rectum extracto that Donald J. Trump is the lawful president of the United States.”

      • TooLoose LeTruck says:


        “Rectum extracto”…

        If I’m not mistaken, that’s the Latin nomenclature for a procedure meant to cure a painful and embarrassing medical condition…

        I took 4 years of Latin in high school and got a 98 on a statewide final one year… you can trust my opinion…

    • bbleh says:

      Classical merit points for use of Dative of Means consistent with meter and rhyme.

      In the coming climatic apocalypse in which we’re reduced to subsistence farming again, you have a future as a traveling bard!

      (yes yes should be “recto,” shuddup, we may NEED traveling bards…)

        • bbleh says:

          No no, I was merely forestalling the pedants. Living language and all that! In the apocalyptic future, there will be no textbooks or nineteenth-century educational edifices. YOU will be the conduit of knowledge, of history and of myth, and that is far more important than some silly grammatical rule which may or may not have been observed 2000 years ago anyway.

          Now, start shopping for sturdy sandals and oil lamps that fit on walking staffs without banging too much. Just in case, I mean.

    • Peterr says:

      Judges, like anyone else, can be tried and convicted of crimes. To be removed from office, however, requires impeachment by the US House of Representatives and conviction by the US Senate.

      (Note that a conviction for a crime is not required for a judge to be impeached and removed.)

  12. Silly but True says:

    At this point in time, this is becoming yet another Schroedinger’s case, where a basic, fundamental fact should have been explicitly resolved long before now.

    The FBI is staking the entirety of its actions on documents _being_, not merely being “marked”classified documents.

    The very first sentence of the Mara-lago search affidavit stated this: “The government is conducting a criminal investigation concerning the improper removal and storage of classified information in unauthorized spaces, as well as the unlawful concealment of government records.”

    So any problem with conflating any of espionage act’s statutory crime of improper handling of national defense information to just some general government classification handling issues originates with the FBI; it didn’t just merely seek only those documents containing national defense information, it sought all classified information of any type (FISA, DOJ, likely FBI/Mueller Russia investigation documents, etc., all of which would have been sought by FBI but none of which had ever had any inkling of being defined as national defense information).

    If those presumed classified documents were in fact not classified but had been declassified by the President, then that part of the affidavit itself is false, and the search in effect fraudulently predicated; the Magistrate Judge authorizing the search warrant would have been misled on that material fact. But, still in any case _if_ it was, then that’s going to be a tough pill to swallow at this point.

    Now a lot of the problem in answering that fundamental question likely hinges on the veracity of Trump himself and/or Kash Patel as a witness to Trump. And that’s probably going to be the toughest pill of all to swallow.

    _If_ it’s true, it would point to monumental failures of all sides: by Trump team to communicate such a basic, fundamental fact that would have headed off all of this, and by NARA & FBI to do basic due diligence on probably the most basic, fundamental material fact driving the entire concern of probable cause of serious crime; that aspect in its entirety is at least what triggered NARA to involve the FBI and NARA should have had that question explicitly answered long before now; and Trump team should have communicated that to NARA long before May 10, 2021.

    But, then if it’s not true, then everything is as it should be.

    It will be for federal courts to resolve whether it is or isn’t, because that question strikes to heart of whether FBI should even have executed the search it did on the basis it affirmed to the Magistrate.

    • Cheez Whiz says:

      The whole point of this puppet show is to avoid that basic, fundamental fact. Cannon is leveraging the prestige and deference of her position to throw as much spaghetti against the wall as humanly possible. Who knows, the horse might learn to sing.

    • skua says:

      “The FBI is staking the entirety of its actions on documents _being_, not merely being “marked”classified documents.”

      How do you know this?

      AIUI any document that was missing at the end of the Trump Presidency can be classified as POTUS Biden wishes.
      The FBI may be basing their actions on their knowledge that Trump is in possession of currently classified material.
      Which is far from “staking”anything.

      • Silly but True says:

        I know this because it is now public record; the FBI stated exactly this in its first sentence of its affidavit to obtain the Mara-lago warrant.

        Your second point while true is not currently the case. We know what got us to today: NARA upon receiving documents back from Trump noted that some of those documents were marked classified; that is their pre-Biden classification markings, not new retroactive Biden classification. Based on those markings, NARA then referred its findings to the FBI which then affirmed the above in its affidavit to obtain the warrant.

        To your second point, that _is_ a possibility that Biden could retroactively (re)classify (de/)unclassified documents but this would be extremely fraught. First, there is the normal process for such reclassification, and it’s even more limited than either normal original classification process or declassification process, and the normal reclassification procedures can only apply to documents that remain internal to the government that have not been released to public. Upon release, the horse has left the barn, and reclassification is foreclosed. Now, that’s normal agency process, not POTUS. Yes, Biden can unilaterally reclassify using POTUS plenary powers that Trump used to declassify; it would be just as abnormal. And it’s likely that while Biden could retroactively reclassify them, courts would be skeptical to accept any retroactive prosecutions based on such a “gotcha” game. It would also likely set off a perpetual war that opposing parties new incumbent POTUS would do the same, and the next one do the same to Biden, Obama, and Clinton documents criminalizing them or their library’s personnel; it would be an unbelievable act of partisanship that the court’s would all balk at and tell the POTUSes doing it to quit acting like a child.

    • Kate says:

      Uh huh. Good luck with that. 🙄

      **[FOURTH AND FINAL REQUEST: You have used multiple usernames since your first apparent comment in October 2019: Cat, Kate Ellington, Cate E., Cate Ellington, Cate and Kate, across 16 comments. Pick one username and stick with it so community members get to know you. Using multiple usernames is considered sock puppeting. Using Kate or Cate is also inadequate as there are other community members with the same name. Pick a differentiated name and stick with it. /~Rayne]**

  13. cmarlowe says:

    Quote from Cannon’s order:
    “…to the extent Security Assessments truly are, in fact, inextricable from criminal investigative use of the seized materials, the Court makes clear that the 9/5 order does not enjoin the Government from taking actions necessary for security assessments”

    Peter Strzok’s tweet in response to that part of the order states that the DOJ can still lift fingerprints from the class docs (Marcy agrees I believe):
    So I really don’t understand what DOJ is not allowed to do. Will this really slow them down?

    • brucefan says:

      “So I really don’t understand what DOJ is not allowed to do.”

      This is the argument DOJ will confront on appeal- the Stay was denied, but the injunction was narrowed to address DOJ’s concerns.

    • earlofhuntingdon says:

      Since Cannon ignores, among other things, how intertwined are the FBI’s criminal and national security investigatory roles – and refuses to believe the FBI when it says how intertwined they are – her statement doesn’t clarify jack shit. Defense counsel would have a field day with the ambiguities Cannon goes out of her way to create.

      • jhinx says:

        Cannon [before]: The Court does not enjoin the Government from security assessments.

        Cannon [now]: To clarify, blah blah blah the Court does not enjoin the Government from security assessments.

    • bbleh says:

      The FBI *IS* the national counterintelligence agency. To say that the “intelligence community” may examine the documents but the FBI may not is like saying, I dunno, you are allowed to travel, but not via any US port.

      It’s ridiculous, and easily shown to be so by awareness of even the most basic facts, but per above I don’t think that really pertains here …

    • StevenL says:

      Well, explicitly forbidden are “for example, presenting the seized materials to a grand jury and using the content of the documents to conduct witness interviews as part of a criminal investigation.” [p. 6]

      I have to imagine witness interviews at this stage would be for both purposes. Thus the order remains problematic even as clarified.

      Not at all my expertise, but I presume the government could obtain a civil subpoena from a judge for the purpose of intelligence impact assessment, though I suspect this might be a very unusual approach to this situation.

      More possible grounds for appeal.

      • DrDoom says:

        “More possible grounds for appeal.”
        The point of the whole exercise. Any national security investigation will be deemed in retrospect to have tainted any criminal case, and so violated the injunction. It is classic Calvinball, announced in advance as such.

      • timbo says:

        That appears to be obstruction on its face. Where is her rational, as supported by precedent, for such a ruling? Where is the court record in which the plaintiff raised these issues directly? How does she even have standing to make such a ruling? IANAL, yet this seems to be a direct effort to obstruct, not a well reasoned ruling by a Federal judge that gives a wit about the legitimacy of the Article III branch.

  14. Jose Casta says:

    THIS is a classic example of a Judicial Mafia Abracadabra Carpetbagger Judge tipping the scale of Justice in favor of the FPOTUS. From my experience in Court as a pro se, Carpetbagger judge DISTORT the ISSUE, avoids the Facts, ignores the Evidence, by Gaslighting through her nonsensical Orders. It’s clearly a direct conflict of interest on her part, she should have recused immediately.

  15. OldTulsaDude says:

    In “How Democracies Die” one of the major turning points is corruption of the courts. I believe we are there and hanging by a thread.

    • TooLoose LeTruck says:

      “How Democracies Die”is an excellent book, IMHO…

      I recommend it highly, along with “How Civil Wars Start’…

      According to Walter (author of How Civil Wars Start), we’re not at ‘the shooting war’ stage… yet… but we are inching closer to it.

      Both books are worth reading…


      • pcpablo says:

        May I recommend “Conspiracy” the movie, as an example of how Cannon, and her ilk are planning and trying to massage (bludgeon) the legal system.

  16. Pat Ryan says:

    Ironically, her flawed logic mimics Barr / Mueller report.

    Barr: if there cannot be any indictable issue because he’s President we need not look at any other issue (obstruction)

    Cannon: We need not look at the Espionage Act statutes 18 USC 793,2071,1519 if we cannot determine what the documents are in the first place…

  17. StevenL says:

    From the Denial:

    “First, there has been no actual suggestion by the Government of any identifiable emergency or imminent disclosure of classified information arising from Plaintiff’s allegedly unlawful retention of the
    seized property. Instead, and unfortunately, the unwarranted disclosures that float in the background have been leaks to the media after the underlying seizure [see ECF No. 64 pp. 9–11 n.11].”

    Stunning that the judge apparently fails to appreciate that insecure storage of documents including information on confidential humans sources is an emergency in plain sight.

    And the reference to leaks is gratuitous and thus unworthy of a District Court decision.

      • Ginevra diBenci says:

        I believe she’s referring to the “nuclear document” story in the Post. I thought Trump’s side probably leaked that to Devlin Barrett for just this purpose: so it could be exploited as an argument by their judge.

    • timbo says:

      Reference to the leaks without looking at the overall case is definitely gratuitous signalling and not appropriate judging.

  18. Mainly Mike says:

    Marcy Could you do a post on the “incident” the Judge has obliquely referred to twice now? Are the papers about that sealed?

    • StevenL says:

      I think you are referring to the “instances” the judge refers to at p. 4 of today’s order, which references p. 15 of the previous order (DE 64).

      Marcy described this previously, as I recall, as follows:

      The FBI reported that two documents that were potentially attorney-client privileged were identified by the non-filter-team members of the search team and conveyed promptly to the filter team.

      Marcy indicated that there was nothing wrong with this because FBI had committed to use the filter team only in the office and not the storage room (though I don’t see this in the warrant or affidavit, maybe in a DOJ filing).

      DOJ & Marcy regard this as evidence that the system is working, and Marcy noted that in at least one case the searcher got no further than seeing an attorney’s address block. The Judge, in contrast, regarded this as an indication that the FBI’s filter process could not be trusted:

      “As reflected in the Privilege Review Team’s Report, the Investigative Team already has been exposed to potentially privileged material. Without delving into specifics, the Privilege Review Team’s Report references at least two instances in which members of the Investigative Team were exposed to material that was then delivered to the Privilege Review Team and, following another review, designated as potentially privileged material [ECF No. 40 p. 6]. Those instances alone, even if entirely inadvertent, yield questions about the adequacy of the filter
      review process.”

  19. my2cnz says:

    I haven’t read through comments yet, so apologies if this was previously posted, but in Cannon’s order appointing a Special Master she’s ordering the gov’t to show classified docs to Trumps counsel? Page 4 of 8:

    bb. Make available for inspection by Plaintiff’s counsel, with
    controlled access conditions (including necessary clearance
    requirements) and under the supervision of the Special
    Master, the documents marked as classified and the papers
    attached to such documents; and
    cc. Make available for inspection by Plaintiff’s counsel any non documentary items.


    • prostratedragon says:

      Since NAL, I’m not sure if this applies to the present situation; maybe since she has ruled, the case can only go to appeal now. However, last week this happened which does not suggest that such a brief would go anywhere even if it were allowed:

      A federal judge has rejected an amicus brief submitted on behalf of former federal prosecutors who said a special master is not needed to review documents seized from former President Donald Trump’s Mar-a-Lago home.

      The brief, authored by Paul, Weiss, Rifkind, Wharton & Garrison partners Brad Karp, Roberto Finzi, Harris Fischman and David K. Kessler, as well as attorneys from Stearns Weaver Miller Weissler Alhadeff & Sitterson, Norman Eisen and the nonprofit advocacy group Democracy 21, was filed last week. And its rejection came a day after Judge Aileen M. Cannon granted most of Trump’s request for a special master to oversee documents and items taken by the FBI during the Aug. 8 search.

  20. Obansgirl says:

    I’m not a lawyer nor am I close to knowing how the system functions although I’ve learned much thank you ew. I’ve never had a speeding ticket or had need of an attorney. Is this the new normal? Will only poor people be held accountable for crimes now? This seems ridiculous to me that all this evidence cant bring a long time criminal to justice?

    • Ken Muldrew says:

      1. It’s far from over, so don’t throw in the towel yet.
      2. As far back as Sumerian times, there has always been a faction of society that has been able to enjoy greater privileges and rights than the majority (generally known as the “elite”). The US has done far better than most societies in evening out this imbalance, but obviously a truly blind justice remains more aspirational than realized. So take heart from the fact that you live in a more just society than the vast majority of humans who have ever lived, and also from the fact that as a citizen in a democracy, you can even have an influence on improving it. The rule of law is not dead yet

      • timbo says:

        Also, it appears that the “evening out of society” has already reached its apogee and is now in decline. That’s part of what has contributed to the political instability in the US that we are now experiencing. And we are in danger of ‘Brazilification’, where corruption is much more open in all sectors of society. Already one of the two major political parties in the US is openly corrupt. Now we have the judicial branch beginning to openly practice it’s lack of accountability to the public and the Constitution. Hopefully it’s not gone too far but this is not normal under the older, traditional way of doing things in the US. The GOP used to frown on open corrupt behavior…now they revel in it.

        • Ken Muldrew says:

          There are a couple of factors at work here that are worth considering. First, we are rapidly approaching an existential threat due to global warming that will require an unprecedented level of *collective* action. This means that individuals are going to lose some of their personal liberty for the greater good. For those steeped in a tradition of glorifying the individual over society, especially those who reside within a system that exhibits rampant inequality that is getting demonstrably worse, the natural reaction is to rebel against the social pressures toward self-abnegation and even to brazenly take whatever is within reach. At least, this is the reaction of those who worship individual liberty above all; those who naturally gravitate to the current Republican Party.

          Secondly, the process of innovation is driving individual anxiety toward a level where the existential threat becomes personal, and overwhelming. The nature of technological and organizational innovation is that the rate of change increases with time due to the hierarchical structure of innovations (basically, we make new things by recombining subunits in new ways, the new combinations then become subunits for further innovation leading to a multiplicity of available subunits. The number of possible innovations grows exponentially with time). Most innovations are incremental and we are able to adapt, even though the cumulative change over an individual’s lifetime is substantial. However, the increasing pace of innovation means that at some point, the degree of change *within* a human lifespan becomes overwhelming. Our current gambit is to allow young people to learn the necessary knowledge and skills that will be relevant throughout their working life (with adjustments for incremental change). But what happens when the change during someone’s working life is so dramatic that it makes that early training utterly irrelevant? We do not have institutions to allow people to drop out of normal life and fully retrain for a brave new world (kids, car payments, mortgage payments, career ladders,…). People get worried when they see personal disaster hovering just in front of them.

          The forces of change are overpowering yet barely visible. To any one individual they are as arbitrary and capricious as the Gods who interfered with the lives of the ancient Greeks. Again, we are going to need an unprecedented degree of collective action to solve this problem, but the natural instinct of individuals whose tradition is based on the narratives of “great men” is to circle around the individual liberties that are sacred to their understanding of life. Obviously I’m simplifying to an absurd degree, but what we are seeing are symptoms of enormous societal problems that go way beyond corruption within the Republican Party.

        • rip says:

          @ Ken Muldrew –

          I feel that you have really touched on the upcoming/ongoing realities that are affecting us now and will only become much more dire with time – perhaps only years or decades.

          We argue about some political and personal differences while the world is suffering a major ecological change. As these changes continue and accelerate our needs to deal with the effects will become harder, and more necessary for just pure survival.

          Could you start this conversation as a new thread within emptywheel or elsewhere? Perhaps you already have a site/resource that carries your thoughts.


        • Rayne says:

          NOT in this thread. Ken’s comment was 441 words long and barely related to the post being meta material.

          This is when a community member would do well to have their own blog.

        • timbo says:

          Heh. Which is why I left the global warming thing out of my screed above. (See, I’m learning!)

          I fully was aware tho that “But you missed this obvious thing!” is a real danger on the Internet. Yeh, so, I was expecting that someone would be “global warming” my comment. But what I should have done was maybe just add a one liner at the bottom? “Plus global warming…but that’s OT.”

          Or, okay, I coulda just said nothing. Another useful option at times for sure.

  21. TeeJay says:

    Biden is president. He should exercise his executive power. He should declare that the documents Trump has are classified as marked irrespective of what their previous status was.

    • DaveV says:

      Not good idea now. Trump would say he declassified 1st and Biden reclassified 2nd so that prove that it is political and that then proves his point that he had a real possessory interest and Cannon would be right to then exclude the documents from the warrant and kill the case. DOJ will stay on track with what they’ve laid out. Maybe even get some testimony from $ash and the 2 lawyers.

    • timbo says:

      That would appear to be an unnecessary move at this time. Team Twitler has not asserted in Federal court that the marked documents were ever declassified.

  22. earlofhuntingdon says:

    It’s hilarious that in Cannon’s appointment of a SM, the first item of Dearie’s work (page two, item 2(a)) is to verify that the DoJ has disclosed, “the full extent of property seized from the premises…including, if deemed appropriate, by obtaining sworn affidavits from Department of Justice personnel.” So much for even handedness.

    The funny part is that Cannon has not required Trump to provide any sworn affidavits to support his factual claims. That might be, in part, because Trump makes so few of them. His pleadings are mostly hypothetical “what ifs” and “could haves,” rather than factual claims, which make them inadequate.


  23. GKJames says:

    FWIW, I finally figured out how the case so conveniently ended up with Cannon: she’s the only US District Judge at the Ft. Pierce courthouse in the Southern District. Trump could have gone to (the closer) West Palm Beach courthouse, but would’ve had to take his chances with the auto-dialler.

    • njbill says:

      That is only part of the answer. Trump should have filed a civil cover sheet with his initial filing.


      If properly filled out, he would have checked “Palm Beach” as the county in which the action arose. He also would have disclosed the related case pending before Judge Reinhart.

      While the local rules seem to contemplate cases arising and filed in Ft. Pierce County being assigned to the Ft. Pierce judge (Cannon is the only one), that is not an ironclad rule. But more significantly, the action, having arisen in Palm Beach County, should have gone on the wheel for Palm Beach cases, or even gone to Reinhart.

      How and why did the clerk accept Trump’s “motion” for filing? No self-respecting clerk would have ever accepted it without an accompanying complaint and civil cover sheet. I suspect Trump either talked the clerk into calling up to Cannon for a “ruling” on accepting the motion for filing or Trump made an ex parte call to Cannon ahead of time, and she then greased the skids for the motion to be accepted by the clerk. All highly unusual and entirely inappropriate.

      • DaveV says:

        Not forget that Trump actually had to file properly the following day electronically and the lawyers stated that they had a problem with their connection, so they rush 70 miles to file in person.

        Please take notice that the foregoing Motion For Judicial Oversight And Additional Relief
        is being plead conventionally because a technical issue with access to the Court’s CM/ECF system
        precluded electronic fling today,and the CM/ECF Help.Desk advised undersigned counsel to file

        • Arteberry says:

          Yes, this docket item is notable. The real question, it seems, is whether the “technical” issue was real … or manufactured to facilitate a hand filing at Ft. Pierce, Three lawyers signed the filing for Trump. Two (Trusty and Corcoran) were out-of-state attorneys who filed (erroneous) PHV applications with the initial filing. Those two clearly were not registered to use the SDFL CM/ECF system. The third lawyer (Harrigan, if memory serves) is a Florida practitioner but apparently has no federal practice and therefore may not be registered with the SDFL CM/ECF system. But that’s not really a “technical” problem with the system. Assuming she was registered, though, there is no way the electronic system would have accepted as an initial filing the 95% incomplete submission from Trump. Again, that is not a “technical” issue (unlike, say, an internet disruption). The whole “technical” issue seems more like a ruse to make sure the filing could be done by hand, going where it would immediately get Cannon’s attention and avoiding the electronic system’s assignment either to Reinhardt or to a random SDFL district court judge. DOJ understandably doesn’t want to get bogged down but if there are details that indeed corroborate dishonest gamesmanship in judge selection, I think DOJ should pay attention to making the record.

        • njbill says:

          This and your other posts on this subject are well written.

          Fed.R.Civ.P. 5(d)(3)(A) says a person represented by an attorney must file electronically “unless nonelectronic filing is allowed by the court for good cause or is allowed or required by local rule.” Seems that this applies to complaints as well as other papers. I don’t see anything in the local rules that creates any additional exceptions to electronic filings applicable here.

          The gaping loophole, of course, is the “allowed by the court for good cause” language. If Cannon allowed the non-electronic filing for “good cause,” there should be a written record of that, including what the “good cause” was. Is there?

          Not sure about this, but I suspect there is only one CM/ECF system for S.D.Fla., not a separate one for each division of the district. So a party represented by counsel is supposed to file a complaint electronically, including filling out all of the required the paperwork correctly. Then your case gets randomly assigned to one of the judges in the district. There are provisions in the internal operating procedures which (as I read them) undercut to an extent the true random assignment of cases district (and judge)-wide. For example, the procedures say they try to assign cases to courthouses (and thus judges) as close as possible to where the action arose for the convenience of the litigants. They also try to balance caseloads of the judges.

          Nevertheless, the internal operating procedures have a lot of lingo about “random assignment,” assigning cases on a “blind random basis,” the clerk not having the power or discretion to determine judge assignments, and assuring that the identity of the assigned judge is not disclosed to the clerk or anyone else until after filing.

          And of most significance here, this case arose in Palm Beach County, not one of the counties served by the Ft. Pierce division.


          Instead of filing a motion in the then-pending proceeding before Reinhart (which could have been done electronically and the CM/ECF system would have accepted the electronic filing), Trump sought to file a separate (and new) civil action in person in Ft. Pierce. The CM/ECF system would not have accepted a “motion” as the first filing in a new case. Maybe that was the “technical issue” mentioned in Trump’s notice of conventional filing – the CM/ECF system rejected the motion for filing. Of course, as noted, that wasn’t a “technical issue” at all.

          So having been “rebuffed” by the CM/ECF system, Trump drives up to Fort Pierce and asks Cannon to find “good cause” for the filing to be accepted. My hunch is Trump may not have even bothered with the Fort Pierce clerk because any clerk worth his or her salt would have rejected the filing (you can’t commence a civil action with a motion). Also a clerk probably would have been more of a stickler on venue. If Trump had properly revealed the action arose in Palm Beach County, I think the clerk would have assigned the case based on the wheel for Palm Beach cases.

          So Trump worms his way into Cannon’s chambers, makes his pitch, and we are off to the races.

      • Arteberry says:

        Like many others, I’ve been squawking from the first Trump filing about the stunning abandonment of the local and federal rules of civil procedure. No complaint, no adequate cover sheet and reference to related cases (and venue), no adequate service of summons, no adequate time for the government to respond (via a motion to dismiss, for example) no separate motion by Trump for a TRO supported by affidavits and points/authorities. As Trump was represented by counsel, everything should have been e-filed and nothing should have been accepted over the counter at the courthouse. I understand why the DOJ might have felt it was wiser to look past the procedural black hole and just try to contest Trump on the merits. Personally, though, I would have been inclined to at least briefly raise and preserve the procedural flaws for the 11th Cir. to consider.

        One day, I hope, the story is told about what went down in the clerk’s office when the Trump “motion” was filed. It will be a minor and arcane part of the larger story—a part that will be of little interest to non-lawyers—but I’d like to see the Chief Judge of the SDFL find out what the clerk or deputy clerk were up to and who (Cannon or someone else) authorized what. To put it another way, clerks absolutely live to reject filings for any of the myriad reasons they can be rejected. The clerk at Ft. Pierce courthouse stands proudly apart from the crowd.

      • timbo says:

        This is an incredibly important detail. Where is the required paperwork? Again, this is evidence (at least circumstantial in nature?) that this is a corrupt proceeding by Cannon in the 11th Circuit. Has any other judge in the 11th Circuit raised an eye-brow over this one? Or are they all thinking that they’d like to also preserve the ability to skip the bureaucratic requirements to file when it’s their own friends that they’d like to help along to a favorable venue for filing and adjudication?

        • Ginevra diBenci says:

          It’s sure important to me, because court clerks have helped (or in a few rare cases refused to help) with local filings, making sure everything was by the book. I hope these procedural travesties surface somewhere in DOJ’s future filings, for the simple reason that the rest of us work hard to follow the same rules–at our own expense, and without three million dollars’ worth of fancy representation.

        • bmaz says:

          I did not know you even could hand file in federal court anymore. To my knowledge, that cannot happen here, unless maybe a pro per litigant that does not have an ECF filing ability. Maybe SDFL is different, but that part of the equation is weird.

        • vvv says:

          In the local IL counties (Will and Cook) where I practice, I understand that if you try to file by hand in the state court, they sit you down to help you do it electronically on the public computers there in the clerk’s office.

        • bmaz says:

          I have had an ECF ID since longer than most anyone, because we were an initial test jurisdiction. I hated it at first. But that is the only way now. At the state level, we use something called TurboCourt. It is perhaps better than ECF, but still annoying.

        • Fancy Chicken says:

          Actually, in the recent dismissal of Trump’s suit against Clinton and every other democrat he thinks has done him wrong, Donald Middlebrooks wrote:

          “I note that Plaintiff filed this lawsuit in the Fort Pierce division of this District, where only one federal judge sits: Judge Aileen Cannon, who Plaintiff appointed in 2020,” Judge Donald M. Middlebrooks of the Southern District of Florida wrote in a footnote on a separate motion.
          “Despite the odds, this case landed with me instead,” Middlebrooks wrote.‘

          From WaPo article “Trump’s lawsuit against Clinton was filed in court with judge he appointed”, published 9/9/22

          So you could at least say another judge in the circuit had a pre-sentiment about Trump’s judge shopping.

        • timbo says:

          Hopefully DOJ is amassing a file on folks like Cannon. Certainly this sort of note is worthy of being in such a file.

          I harken back also to the lack of post-election records that NARA has gotten from DJT as required under the PRA. Cannon’s appointment handling might fall into those missing records…or be in the records that DOJ has seized, at least the earlier part of finding candidates for office, etc? That’s a big area for an investigator into Cannon and her wonky clown court to dig IMO.

    • Carole says:

      To call the WPB Courthouse closer is an understatement. Trump went 70 miles out of his way. We could call it the New Cannonball Run.

  24. DLup says:

    Marcy, can you clarify a point you are trying to make please regarding Cannon’s view of the classification status?

    You first wrote: “That’s because — in a breathtaking paragraph — she suggests that the classification marks on the documents Trump stole are up for debate.”

    Then you quote from the ruling and follow the quote with this statement:

    “Had she discussed the Espionage Act, she might consider that it doesn’t matter whether Trump claims to have declassified the documents. What matters is if they are National Defense Information. Had she discussed the Espionage Act, she might consider that it doesn’t matter whether Trump claims to have declassified the documents. What matters is if they are National Defense Information.”

    Thus I read the two statements together to mean that you think that Cannon thinks there is debate as to whether or not Trump declassified the documents.

    My read is that Cannon means she is not certain that the DoJ’s description of the documents as classified is actually true and not something they have made up. I think this is more what your first statement implies, but the second statement suggests a different reading. Which is what you meant?

    • earlofhuntingdon says:

      Cannon, like Trump, is playing games, all in favor of Trump. Her order says that it is an open question whether the documents are privileged – and that Donald Trump could assert that privilege – whether A/C or EP – and potentially, ownership.

      She says it is an open question whether government documents, with obvious and sometimes high-level classification markings are, in fact, classified. The government might have lied. Alternatively, she might believe Trump’s line that he could have declassified them all. A position Trump does not assert. (She ignores that classification is not required for Trump to have violated the three criminal statutes the FBI cited in its search warrant.)

      Her order allows both the SM and Trump’s lawyers to see all the documents, because Trump couldn’t possibly know what documents the government seized, even though Trump had them in his possession for 18 months after he left office.

      Her position is without precedent or legal foundation. None. She just made it up.

      • bidrec says:

        In military lingo her comments would be “prejudicial to good order” in the intelligence community since it goes against what the intelligence community learns in class, at morning muster, and so on. It flies in the face of a lot of protocols without acknowledging that there are existing protocols for the handling of sensitive information.

      • DLup says:

        I think I’ve got all that, I am just trying to parse what Marcy thinks Cannon is saying about classification, not privilege. Is she leaving open that Trump may have declassified the documents at some point, despite no claims to that effect in any filings, or is she suspicious that the documents were only alleged to be classified and may in fact not be. Each of Marcy’s comments at the top seem to read in opposite directions from each other. Your comment above at 9:35 about the “full extent of property” (interesting word choice on her part) suggests that she has or wants us or someone to believe she has a suspicious mind, as Elvis would say.

        • Peterr says:

          Cannon thinks that the alleged debate about the classification status matters, and Marcy points out repeatedly — in italics — that it doesn’t.

          The espionage statute refers to information related to national security, and classification does not matter.

          The obstruction statute is even less related to classification status. Taking government documents and then not returning them when asked is obstruction, plain and simple. The classification marks on some of them are proof that they are government documents, whether or not they are still classified. Trump did not own them when he was president, he does not own them today, and he never will own them in the future.

          These documents do not belong to Trump, and Cannon appears to want to talk about anything that might distract from that disturbing fact.

  25. earlofhuntingdon says:

    Just to be clear about a point Aileen Cannon knows well, that she requires Trump to bear 100% of the cost of the SM has only the appearance of a concession to the USG and penalty to Trump.

    There will be inescapable administrative costs, including SCIF-level facilities to manage and review some of these documents. But Dearie remains a federal judge, on senior status. His hourly rate would be a pittance compared to the $750-1500/hour a sufficiently cleared senior lawyer in NYC or DC would charge.

  26. Tim L. says:

    Corrupt, yes, but also deeply ideological. This is of a piece with the longterm right-wing demolition project: you can’t trust the government. “Who’s to say whether the documents are really classified?” (Akin to, “Govt. claims the white powder was cocaine. Maybe it was baby powder”). It is also a given among this cult of Ayn Rand x Friedrich Hayek that the Left* (as defined by them) are evil and must be destroyed; and they have no qualms, legal or moral, with holding that position and carrying out this project.

    *The Left use govt. to try to help people. That is evil.

  27. earlofhuntingdon says:

    As EW has said on twtr, Andrew Weissmann is missing something big in his praise of Judge Dearie. However talented and forthright he is, he works for Cannon, who gets to make any disputed calls.

    • timbo says:

      And each disputed call might have to be appealed individually…

      Yeah, hopefully the appeals court in the 11th will help DOJ out here just a little? If not, maybe what DOJ needs to do is have some sealed indictments waiting in the wings and unseal the easiest to prove one(s)…things that do implicate folks like Corcoran as being at minimum a witness?

      But then, of course, DOJ then runs the risk of appearing to be making retaliatory unsealing(s)…and Cannon already set that all up with her wonky statements about poor little ol’ Twitler and all the meanies out there trying to embarrass his criminal ass.

    • DaveV says:

      Can Cannon enjoin the grand jury investigation that caused the Search Warrant to be issued? The DC Circuit after all is the proper venue. Why did the DOJ not raise this issue in their motions on the classified documents?

      • nedu says:

        In basic theory, while a (federal) Grand Jury is under the supervision of the (federal) court in the district in which it sits, in theory, as elucidated by the Supreme Court, in theory, the Grand Jury is an independent institution of government…

        Under what circumstances may a federal district judge enjoin Congress against pursuing its legislative duties? In theory, the Grand Jury is just as independent as Congress is.

        (Then, of course, there’s actual practice, and who gives flying ham sandwich about the theory.)

  28. taluslope says:

    Doesn’t this all ultimately work against Trump? Go around judge shopping to screw with national security and you must eventually even piss off Garland. Though you have to know that Garland is already pissed and I can’t begin to imagine how the attorneys running this investigation feel.

    Although they will all act and proceed in a professional manner of that I’m sure.

  29. TooLoose LeTruck says:

    ‘But the entire question is what to do about documents MARKET classified.’

    ‘Documents MARKET classified’?

    Hmmm… mere typo… or Freudian slip?

  30. Silly but True says:

    There is another fascinating angle to future conflict: the FBI’s assertion that its intelligence review is inextricably linked to its criminal investigation; it’s using senior FBI counterintelligence division personnel on the criminal case.

    In clarifying that the FBI can proceed, that her order did not confound the intelligence review, only criminal prosecution, she may be setting a future “tainted evidence trap” defense for Trump that any future criminal prosecution that involved counterintel-side personnel who viewed ultimately or contested privileged documents or sought to use as evidence ultimately privileged or contested documents because they accessed them while wearing Cannon’s “intelligence hat” as part of the intelligence assessment that can proceed and not her “criminal hat” that cannot would be irreparably broken and would need to be dismissed (with prejudice)?

  31. Scott Church says:

    Cannon is an honors graduate of the

    Willam Barr Academy of Creative Jurisprudence

    “Don’t press your luck – at least it ain’t Paul Huck!”

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