“The Rule of Law is not assured:” The Cascading Constitutional Crisis Judge Aileen Cannon Deliberately Created

See the important correction about the scope of DOJ’s motion for a stay, below. I’ve corrected this post in italics.

There will be some timeline clashes this week in the Trump stolen document case, each of which could spiral into a Constitutional crisis.

They arise, in part, from Judge Aileen Cannon’s order that Judge Raymond Dearie start his review of the documents with those marked classified.

The Special Master and the parties shall prioritize, as a matter of timing, the documents marked as classified, and the Special Master shall submit interim reports and recommendations as appropriate.

That’s because DOJ’s motion for a stay of Cannon’s order enjoining DOJ from doing any investigative work and sharing classified information — which was filed at 9:03PM on Friday — and any other yet-to-be-filed appeal of (parts of) her order will be proceeding even as Dearie scrambles to meet Cannon’s first deadline: to have a schedule in place by September 25.

Within ten (10) calendar days following the date of this Order, the Special Master shall consult with counsel for the parties and provide the Court with a scheduling plan setting forth the procedure and timeline—including the parties’ deadlines—for concluding the review and adjudicating any disputes.

On Saturday at 7:03PM — just over 22 hours after DOJ’s filing — the 11th Circuit ordered Trump to file his opposition to the motion for a stay by Tuesday at 12PM.

That deadline comes just two hours before a first meeting Judge Dearie scheduled in his courtroom in Brooklyn at 2PM on Tuesday.

Counsel are directed to appear before the undersigned in Courtroom 10A-S of the Brooklyn Federal Courthouse on Tuesday, September 20, 2022 at 2:00 PM for a preliminary conference in the above-captioned matter.

Counsel are invited to submit proposed agenda items for discussion by docketed letter to be filed before the close of business on Monday, September 19, 2022.

The 11th Circuit seems poised to move quickly. But unless they granted a stay as quickly as they ordered Trump to file, it would not stay the Special Master process.

Until they rule, though, Dearie will necessarily move towards taking some of the steps laid out in this thread from SecretsAndLaws:

  • Finding a SCIF, probably in Brooklyn, to make the classified files available and transferring them by hand
  • Finding a place to store the remaining seized 12,904 items and shipping them
  • Clearing and providing work facilities for anyone who will have to access the classified documents

SecretsAndLaw didn’t consider one aspect of Cannon’s order. Read literally, with the exception of the 64 potentially privileged documents, she required DOJ to share the originals of the seized material with Dearie, not copies.

That’s likely something DOJ will ask to clarify on Tuesday. It’s solvable, sort of. DOJ can likely find a SCIF in the EDNY Courthouse or US Attorney’s Office. But that’s already a tremendous ask: that the government turn over the original copies of highly sensitive documents lawfully seized with a warrant to another branch of government.

It’s the clearance process that will lead to conflict.

As DOJ noted in their motion for a stay, Trump’s lawyers may be witnesses to the crimes under investigation.

Yet the district court here ordered disclosure of highly sensitive material to a special master and to Plaintiff’s counsel—potentially including witnesses to relevant events—in the midst of an investigation, where no charges have been brought. Because that review serves no possible value, there is no basis for disclosing such sensitive information.

We already know Evan Corcoran is — at least — a witness. But a passage in the warrant affidavit unsealed last week reveals that it called Christina Bobb “PERSON 2” (Mark Meadows is the best candidate to be “PERSON 1,” because we know he was directly involved with returning, or not, documents to NARA earlier this year). Given that it refers to Corcoran as “FPOTUS COUNSEL 1,” there’s the possibility there’s an “FPOTUS COUNSEL 2” discussed as well (the FBI agent did not use numbers for all descriptors; it called Jay Bratt “DOJ COUNSEL,” with no number). If that’s right, it may mean Jim Trusty — the only one of Trump’s lawyers known to have held clearance in recent years and unlike Chris Kise, already representing Trump on August 5 when the affidavit was written — also made himself a witness in this investigation.

Meanwhile in 2020, Kise — the guy Trump just uncharacteristically ponied up a $3 million retainer to — registered under FARA to represent Venezuela on sanctions issues before Treasury. That would normally make him ineligible for a clearance, much less one to access some of the most sensitive documents the US owns.

In other words, it’s possible that none of Trump’s attorneys, not even Jim Trusty, are eligible for clearance in this matter. And when I say ineligible, it’s not a close call. There’s no reason DOJ should be forced to share these materials with someone who was an agent of a foreign power. There’s even less reason to share them with someone who might be implicated in obstruction himself. In a normal situation, Trump would be told to go find a lawyer with clearance (with the added benefit, to him, that they might know a bit about national security law).

DOJ routinely refuses to make classified materials available in civil suits. And anytime someone tries to order them to do so, they jump through a great many hoops to avoid doing so. In the al-Haramain case suing for illegal surveillance under Stellar Wind, one that has many direct applications to this one, that was true even when the plaintiff had already seen the classified document, as Trump has. In al-Haramain, there was even a cleared lawyer, Jon Eisenberg, with no ties to al-Haramain’s suspect activities, whom the government resisted sharing the key document in question.

The government will do — historically, has done — a great deal to avoid the precedent of a District Court judge ruling that it needs to grant even cleared lawyers the Need to Know very classified information.

And I have no reason to believe it will be different here.

All of this wouldn’t necessarily pose a risk of Constitutional crisis if not for a tactic that Judge Cannon has already used to create a harm that she can insist on remedying.

As I’ve noted, twenty days ago, DOJ asked for permission to share the items they had determined to be potentially privileged with Trump’s lawyers so they could begin to resolve those issues. Twenty days!!

But Cannon prohibited DOJ from doing so, because she wanted to deal with this all “holistically.”

MR. HAWK: We would like to seek permission to provide copies — the proposal that we offered, Your Honor, provide copies to counsel of the 64 sets of the materials that are Bates stamped so they have the opportunity to start reviewing.

THE COURT: I’m sorry, say that again, please.

MR. HAWK: The privilege review team would have provided Bates stamped copies of the 64 sets of documents to Plaintiff’s counsel. We would like to seek permission from Your Honor to be able to provide those now, not at this exact moment but to move forward to providing those so counsel has the opportunity to review them and understand and have the time to review and do their own analysis of those documents to come to their own conclusions. And if the filter process without a special master were allowed to proceed, we would engage with counsel and have conversations, determine if we can reach agreements; to the extent we couldn’t reach agreements, we would bring those before the Court, whether Your Honor or Judge Reinhart. But simply now, I’m seeking permission just to provide those documents to Plaintiff’s counsel.

THE COURT: All right. I’m going to reserve ruling on that request. I prefer to consider it holistically in the assessment of whether a special master is indeed appropriate for those privileged reviews.

In her order denying DOJ’s request for a stay of her injunction (and several times before that), Cannon pointed to precisely these reserved potentially privileged items to find a harm to Trump that she needed to address.

To further expand the point, and as more fully explained in the September 5 Order, the Government seized a high volume of materials from Plaintiff’s residence on August 8, 2022 [ECF No. 64 p. 4]; some of those materials undisputedly constitute personal property and/or privileged materials [ECF No. 64 p. 13]; the record suggests ongoing factual and legal disputes as to precisely which materials constitute personal property and/or privileged materials [ECF No. 64 p. 14]; and there are documented instances giving rise to concerns about the Government’s ability to properly categorize and screen materials [ECF No. 64 p. 15]. Furthermore, although the Government emphasizes what it perceives to be Plaintiff’s insufficiently particularized showing on various document-specific assertions [ECF No. 69 p. 11; ECF No. 88 pp. 3–7], it remains the case that Plaintiff has not had a meaningful ability to concretize his position with respect to the seized materials given (1) the ex parte nature of the approved filter protocol, (2) the relatively generalized nature of the Government’s “Detailed Property Inventory” [ECF No. 39-1], and (3) Plaintiff’s unsuccessful efforts, pre-suit, to gather more information from the Government about the content of the seized materials [ECF No. 1 pp. 3, 8–9 (describing Plaintiff’s rejected requests to obtain a list of exactly what was taken and from where, to inspect the seized property, and to obtain information regarding potentially privileged documents)] [my emphasis]

I’ve written about how Cannon outright invented the claim that the medical and tax records were personal property. Both inventories thus far provided to Trump comply with the law (and, importantly, Custodian of Records Christina Bobb signed the first with no complaint about the accuracy or level of detail, arguably waiving any complaint).

But the single solitary reason why the filter protocol remained unavailable to Trump’s team on September 15, when Cannon wrote this order, is because she prohibited DOJ from sharing it with Trump over two weeks earlier.

Cannon, personally, created the harm, then used that harm to justify her intervention to address it.

And if you don’t think she plans to use the harm she created to justify continued intervention, consider that she still hasn’t ruled on DOJ’s request to unseal the privilege team status report, filed over ten days ago, which would be necessary for DOJ to address this ruse before the 11th Circuit (and rebut her false claims that the filter team missed anything). And she ordered Dearie — “shall” — to first address the classified documents even while acknowledging that her order was going straight to the 11th Circuit.

The Government advises in the Motion that it will seek relief from the United States Court of Appeals for the Eleventh Circuit “[i]f the Court does not grant a stay by Thursday, September 15” [ECF No. 69 p. 1]. Appreciative of the urgency of this matter, the Court hereby issues this Order on an expedited basis.

Ordering Dearie to start with the classified documents feigned reasonableness on Cannon’s part. But what it also did is ensure these separation of powers issues come to a head within days, not weeks, possibly before any 11th Circuit ruling.

A reasonable judge, someone genuinely interested in a third party reviewing this stuff as expeditiously as possible, would start with the items already identified as potentially privileged, because that’s the single set of documents that does not implicate any separation of powers issues (and also the single set of documents that is virtually guaranteed not to be included in DOJ’s appeal).

So in addition to the motion for a stay and, at some point, the actual appeal of other parts of Cannon’s order — with complaints about the order to review classified documents, review for executive privilege, and the order prohibiting criminal charges, all of which Cannon concedes are Executive Branch authorities even while she usurps authority to override the Executive — the way Cannon has set this up may elicit several other appeals of the implementation of her order, separate from the initial appeal of the order itself:

  • To turn over possession of materials owned by the Executive Branch to Dearie
  • To clear Trump’s lawyers and anyone else not otherwise eligible for clearance
  • To grant those people Need to Know the contents of these documents

Ironically, Cannon’s Constitutional arrogance may hasten precisely the thing she claims to be preventing.

That’s because the single quickest way to avoid all these problems would be to charge Trump if and when the 11th Circuit (or SCOTUS) grants a stay of her injunction. As soon as that happens, all of this review would get moved under the District Court judge overseeing the criminal case (and Cannon’s intransigence makes it more likely DOJ would file such a case in DC).

DOJ really could not charge Trump on Espionage until that time (or until they seize other classified documents he has been hoarding, which they allude to in their motion for a stay). That’s because the the key proof that Trump refused to give the classified documents back is the failure to comply with the May 11 subpoena. Even any obstruction charge might require possession of (not just permission to use) the actual documents to prove the case. But DOJ may hasten such a decision at such time as they are permitted, to avoid the other Constitutional problems Cannon deliberately created.

As we have all that to look forward to this week, it’s worth watching or reading the remarkable speech Merrick Garland made with little fanfare at Ellis Island on Saturday, after he administered the Oath of Allegiance to new citizens. After contemplating that his grandmother would not have survived the Holocaust if not for the Rule of Law in the United States, Garland focused on its fragility.

My grandmother was one of five children born in what is now Belarus. Three made it to the United States, including my grandmother who came through the Port of Baltimore.

Two did not make it. Those two were killed in the Holocaust.

If not for America, there is little doubt that the same would have happened to my grandmother.

But this country took her in. And under the protection of our laws, she was able to live without fear of persecution.

I am also married to the daughter of an immigrant who came through the Port of New York in 1938.

Shortly after Hitler’s army entered Austria that year, my wife’s mother escaped to the United States. Under the protection of our laws, she too, was able to live without fear of persecution.

That protection is what distinguishes America from so many other countries. The protection of law – the Rule of Law – is the foundation of our system of government.

The Rule of Law means that the same laws apply to all of us, regardless of whether we are this country’s newest citizens or whether our [families] have been here for generations.

The Rule of Law means that the law treats each of us alike: there is not one rule for friends, another for foes; one rule for the powerful, another for the powerless; a rule for the rich, another for the poor; or different rules, depending upon one’s race or ethnicity or country of origin.

The Rule of Law means that we are all protected in the exercise of our civil rights; in our freedom to worship and think as we please; and in the peaceful expression of our opinions, our beliefs, and our ideas.

Of course, we still have work to do to make a more perfect union. Although the Rule of Law has always been our guiding light, we have not always been faithful to it.

The Rule of Law is not assured. It is fragile. It demands constant effort and vigilance.

The responsibility to ensure the Rule of Law is and has been the duty of every generation in our country’s history. It is now your duty as well. And it is one that is especially urgent today at a time of intense polarization in America.

Having started the speech focused on his forebears, the Attorney General closed by addressing the urgency of “doing what is difficult” for the generations of Americans who come after us.

On this historic day and in this historic place, let us make a promise that each of us will protect each other and our democracy.

That we will honor and defend our Constitution.

That we will recognize and respect the dignity of our fellow Americans.

That we will uphold the Rule of Law and seek to make real the promise of equal justice under law.

That we will do what is right, even if that means doing what is difficult.

And that we will do these things not only for ourselves, but for the generations of Americans who will come after us.

And then — even as the former President was riling up his cult in Ohio — the Attorney General was contemplating, on the verge of tears, that the rule of law is not assured.

Things could get really crazy in weeks ahead.

Update: I’ve been corrected about something in DOJ’s motion for a stay: They requested that the 11th Circuit stay both Cannon’s injunction and her order that they share classified information with Trump.

Although the government believes the district court fundamentally erred in appointing a special master and granting injunctive relief, the government seeks to stay only the portions of the order causing the most serious and immediate harm to the government and the public by (1) restricting the government’s review and use of records bearing classification markings and (2) requiring the government to disclose those records for a special-master review process. This Court should grant that modest but critically important relief for three reasons.

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246 replies
  1. OmAli says:

    I tossed that out in comments in an earlier post. Seems like we need “new” original documents. Didn’t NARA say they fear other classified material is still missing? I hope Garland is beating the bushes for informants about the possibility of other troves at Bedminster or Trump Tower. Swoop in and get them, then indict Trump before the devil (Cannon) knows he is even dead…..

  2. gknight says:

    Thank you for including Merrick Garland’s speech. Lots of insight in it.

    I am simply amazed and stunned by the postings on this site. Thank you and the others involved in making this available and keeping us informed.

  3. Amicus says:

    Yes, it’s all very fluid and interwoven. There is one ruling the 11th Circuit could make that would help to cut through things. If the court of appeals finds that Trump has no Article III standing with respect to the marked classified documents – as DOJ has argued – that would be a binding ruling on Cannon (and the Special Master) that the district court has no subject matter jurisdiction over that set of documents. There was a proposed amicus brief filed by a number of former Acting AGs and the like in the 11th Circuit this weekend supporting DOJ. I imagine it will be publicly circulated soon.

      • matt fischer says:

        Select quotes:

        Executive privilege simply cannot be asserted—as the former President proposes to do here—against “the very Executive Branch in whose name the privilege is invoked …”

        We agree with the district court that an “evenhanded procedure does not demand unquestioning trust in the determinations of the Department of Justice” in all things; but such a procedure does require the district court to follow the law …

        The executive privilege exists, “not for the benefit of the President as an individual, but for the benefit of the Republic …”

        “…the very specific privilege protecting against disclosure of state secrets and sensitive information concerning military or diplomatic matters … may be asserted only by an incumbent President”.

        Because executive privilege cannot as a matter of law be asserted to withhold the classified documents from the Executive Branch in the exercise of an executive function, there simply is no role in these proceedings, at least with respect to the documents at issue, for a special master to make determinations as to executive privilege …

        Presidential records belong to the U.S. government, not former President Trump. Thus, because none of the materials over which former President Trump asserts executive privilege belong to him, a special master review of the 100 or so seized classified documents cannot result in the “return” of any such documents subject to executive privilege to former President Trump. A special master review of such materials would be a pointless endeavor …

        As a result, the record before this Court is that the Executive Branch has been enjoined from exercising one of its most critical core functions—an investigation into the possible criminal misuse of highly classified documents—on the basis of a belief by the district court that a former elected official may, at best, have a theoretical chance of prevailing on a claim of executive privilege that, to our knowledge, has never been accepted by any court in the country …

        In a final section called “Relevant Principles,” the court asserted that “the principles of equity require” it to consider “the position formerly held by Plaintiff.” … The court did not explain what that statement meant, but whatever the court intended to imply, the assertion is wrong.

        “Principles of equity” require that citizens be treated equally under the law. The district court’s analysis, which gave greater weight to the reputation of a former President than to the reputation of any other citizen, and greater weight to that personal reputation than to national security concerns, is fundamentally inconsistent with the basic tenets of U.S. law.

    • greenbird says:

      we pounce, we share.
      we everywhere.
      we thank Doug Kane! [https://www.emptywheel.net/2022/09/19/the-rule-of-law-is-not-assured-the-cascading-constitutional-crisis-judge-aileen-cannon-deliberately-created/#comment-961511]
      we thank Katie!, generous tweep provided thought-making thread:
      https://twitter.com/KatiePhang/status/1572006808700723202
      Katie S. Phang @KatiePhang
      NEW: Trump’s defense team in panic mode: Special Master demanding Trump “disclose specific information regarding declassification to the Court and to the Government…will force [Trump] to fully and specifically disclose a defense to the merits of any subsequent indictment…”

  4. Albert says:

    I believe justice must be swift, as Trump has begun to signal to his army to “stand back, and stand by”
    once again. With no place to gather, the insurrectionists, will take to the streets in the shit hole neighborhoods they live in. They will once again go to jail for the con man they worship. Stuck on stupid!

    [Welcome to emptywheel. Please use a more differentiated username when you comment next as we have several community members named “Albert,” “Alberto,” “Alberta,” “Albertine,” and “Al.” Thanks. /~Rayne]

    • gmoke says:

      I have read that the experts in the history of political revolutions say that the most dangerous time for a political minority prone to violence is when they are soundly defeated at the ballot box. When said minority realizes that they can’t get to power through any democratic means, they resort to the violence they’ve been threatening.

      May this November see the Trmpists soundly defeated and so demoralized that their threat of violence comes to nothing.

      • Fenix says:

        My inclination is to simply reply with an “Amen” but as January 6th has shown us, resounding defeats are in the eyes of the beholders. I seriously doubt there is any ballot box defeat that will convince the cult to *not* resort to violence

      • Becker says:

        Or soundly backed into a corner which is happening now with Trump. He is circling the wagons and including every crazy available (Ohio Rally as example)

      • Vinnie Gambone says:

        ” Violence is the answer when you have no answer.”
        But what will violence look like?
        Is LE preparing? Who will “they” go after, and how? Who will “they” be? Normies? Doubtful. Random violence on individuals in the streets? (That’s what I fear most, as militia groups have done that.)They gonna set cars on fire and loot stores? What do “they” think they are going to bring? Whose left who can organize it? All Stone’s goons are in detention or heading to prison.

        The next wave of violence will be crushed, or, it will never happen because, really, how many sick days , vacation time, personal time can one use up on insurrection?
        Self interest and self preservation, one hopes, asserts itself in the mind of even the most moronic of the morons. “Enlightenment is a broken begging bowl.”

        Not to say violence is out of the question, but it will be more along the Nashville RV bomber, KOOK violence, nothing sufficient to overthrow the government.
        The badly misled and deluded Americans who become violent will suffer, and should. Only a matter of time until the Trump delusion machine runs out of gas.?
        Don’t think Stewart Rhodes don’t cry himself to sleep some nights.

        • Thomas says:

          There are 13 million MAGA.
          Half of them are over 60 and not likely to get violent.

          Of the remaining 6.5 million, 85% of them are spectators. They will stand and watch the violent uprising, and they won’t help stop it, and they will cheer the others on, but they will turn their attention to beating the traffic trying to get away from the insurrection.

          That leaves roughly one million activists, but is that one million trained and well armed and organized and experienced fighters? NOPE.

          It is a mistake to assume that more than one in ten of these people (100,000) is an actual threat that checks all of those boxes, and they are dispersed in 20 states, being a local threat of 5k IF they have skilled logistical support.

          The National Guard can likely take care of this problem and the Joint Task Force on Terrorism has the resources to disrupt them, IF they are deployed.

          The US government needs to prepare now to crush the inevitable rebellion by these terrorists when they lose the election. They will lose the election VERY BADLY.

          They will lose power at all levels and they will be stunningly defeated in places where they believed that they were assured of victory. The defeat is going to be so lopsided and so pervasive that they will not believe the results. They will mount attacks. What kind of attacks and where and how are the questions to answer now. They must be anticipated and swiftly and decisively defeated with overwhelming military and police force. They must be humiliated and incarcerated or killed.

          • TXphysicist says:

            MB (thanks, MB!) let me know of our parallel estimations of Trump’s civilian response numbers elsewhere in these comments.

            I think you and I would disagree most about the responsiveness of the 60+ crowd. According to this (https://www.wbur.org/hereandnow/2022/01/03/jan-6-rioters-white-older), the demographics of the J6 peeps average to around 50 years of age. And they’re only getting older, but, granted, it’s only been a couple of years so far.

            I do like all of the other filters you’ve imposed in your estimation, though. I dunno, the hordes’ numbers maybe be “only” 200k, or 150k radical foot soldiers. That is still wild!

            Sadly, I do not share your optimism regarding election outlooks or ramifications. I’m not sure that the Trumpists will decisively lose, but I certainly hope so. Trumpists may declare victory, in many cases, and then, yes, it could escalate to into literal shootouts. Decisive victories will be recast as proof of large-scale cheating by the dems.

            I struggle to complete a thought experiment in which this isn’t a bloody struggle.

            Enjoy every day, guys/girls.

            • Stephen Calhoun says:

              Short of autistic violence, efforts to negate votes might unfold on election day.

              Here in Ohio, you sign in to vote on little screens that cannot in anyway capture an accurate signature. Meanwhile, monitors are purported to being trained on how to make precinct-level objections to individual voters. The signature mismatch is low-hanging fruit.

    • Alan Charbonneau says:

      “I am so full of anxiety these days.”
      You and me both. I feel like I have been running on adrenaline ever since trump won the 2016 election. I’d like to breath more easily, but it will likely be some time.

      Oh, yes, and thanks to Marcy. Information helps me deal with anxiety and ignorance makes it worse.

      • civil says:

        What actions do you recommend?

        Here’s one that I’ve taken: I recently became a voter registrar in my state and am working with the Poor People’s Campaign to register people from groups that are underrepresented in the voting population and to boost voter turnout.

        • Midtowngirl says:

          I agree – taking some positive action does indeed help quell the sense of helplessness that gives rise to anxiety. My solution last election cycle and now this one is to volunteer for phone banks in critical states – even though I live in CA. We all need to do our part to save this democratic republic from authoritarian demagoguery.

        • Belyn says:

          Sorry for sounding preachy. I applaud your actions!
          But to stay on topic, I find even actions such as physical exercise, preferably outside, or just getting out in nature. Gardening alone or together. Building something. My objective is to displace my attention onto or towards something else, at least to tame the anxiety for a while.

          • Lois S. Irwin says:

            My first (and likely only comment) on this fascinating site I’ve been scouring for months: I no longer feel anxiety (yay) but I joined VOTE FORWARD where volunteers hand write additions into pre-printed letters and hand address envelopes to low-propensity voters. It’s been very soothing to hand-write to folks in the states I chose: Wisconsin and Michigan. More than ten millions such letters will go out in late October providing these folks the basic info they need to vote by Nov. 8.

  5. Peterr says:

    Garland’s speech was quite something. One might expect that the “let us make a promise” section you quote above might be the conclusion, but it wasn’t. He ended by talking briefly once more about his family, then pivoting to this as his conclusion:

    My family members who immigrated here have now long since passed. I regret that I cannot express to them how grateful I am for the gift they gave me in choosing to come to this country.

    So let me thank each of you.

    Thank you for choosing America as your home. Thank you for the courage, dedication and work that has brought you here.

    Thank you for all you will do to help our country live up to its highest ideals.

    Thank you on behalf of a nation that is fortunate to call you as its citizens.

    And thank you upon on behalf of the generations of Americans who will come after you. Thank you.

    There’s no “you ought to be grateful we let you in” as one might imagine from the likes of the GOP leaders. Instead, Garland gives them a seven-fold thank you.

    Thank you for coming. Imagine that.

    • emptywheel says:

      Doth the preacher contemplate stealing Garland’s work?

      It was wonderful. Citizenship ceremonies are so remarkable to begin with. But to have the AG, with no apparently notice, show up to one in Ellis Island and thank the new American citizens was really wonderful. I hope some day we’ll learn the back story of how that came about (eg, whether he went out of his way to ask to give it).

      • bmaz says:

        This is a little publicized thing that a lot of district and circuit judges do. My guess is Garland has done it for a long time.

      • jeco says:

        I’ve been to two naturalization ceremonies and I thought they were both touching, generated some introspection about how differing fates brought us all together here.

        Lately I’ve been paying attention to the words in the pledge of allegiance I recite at my school board meetings. The flag waving yahoos at trump hate rallies are so disconnected from the ideals of the nation they claim to love. When I see draft-dodging trump hugging the flag at his hate rallies I immediately recall “patriotism is the last refuge of a scoundrel”.

        • BrokenPromises says:

          I confess to not being a fan of the pledge of allegiance to the flag. Partly due to it’s adoption following the Nazi pledge in Germany and partly to the risk of ‘refuge of scoundrels’. When I do encounter it, I always try to amend my reciting to “allegiance to the constitution” Thus an oath. And as a damaged former Catholic I omit the word God and in my heart substitute fealty to my fellow humans. Yup, all of ’em.

          • John T says:

            “If I could outlaw one concept, the obvious others apart, it would be fucking ‘patriotism.’ It’s nationalism in better clothing. You know who were patriots? The Nazis, and those Japanese fucks who bombed Pearl Harbor, and the Serbs who rounded up all those men and boys and put them in holes in the ground outside Srebrinica before going back to rape their women, at least until someone tried bombing sense into them.

            Patriots built Auschwitz.

            You start believing that ‘My-country-right-or-wrong’ shit, and it always ends up at the same place: a pit filled with bones.”

            ~John Connolly!

      • John Lehman says:

        …and Garland seemed, several times, on the verge of tears and choking up trying to keep his composure…
        yes, there must be a back story.

    • eskimo says:

      A truly awesome message from the Attorney General, one that might awaken the ranks under his leadership and the justices who remain loyal to the demented faction. In the virtual land of trolls, we all have Marcy Wheeler to thank for threading the vile activism of a civil court in Florida with the foundations of citizenship. Where else can decent people learn about the stakes? Gopus delendum est ⚡️

    • retired railroad switchperson says:

      Beautiful speech, moving ceremony. Watch the video for Garland’s emotion & eloquence, & for the new citizens’ response—but best to ignore the often bizarre & occasionally hilarious (talk-to-text?) subtitles.

    • Ruthie says:

      My spouse became a naturalized citizen during Obama’s presidency, after a couple of decades in the US. The presiding judge was perhaps not as eloquent as Garland, but was equally welcoming. It’d been a long time since I felt so proud of my country.

    • John Lehman says:

      Mmmm….sounds like a really, really good Christian.

      Maybe a lot of the “religious differences” in the world are really, really superficial.

      • J R in WV says:

        Don’t really know for sure, but I believe AG Garland is Jewish. So telling us what a “really really good” Christian he sounds like is pretty much totally wrong.

        He sounds like a really good American leader, that’s what he sounds like!

        • John Lehman says:

          Fully aware Garland is Jewish (some of my family is Jewish too). The point of the post is that the essence of about every major religion in the world is really the same. By saying Garland’s speech was very Christian isn’t denying his Judaism but praising it. Isn’t a quote of Christ’s something like …had you known Moses you’d know me? Every major world religion has some form of Judeo-Christian’s golden rule. After all Christianity was started by a Jewish guy?

          With a little edit to your statement, think we can pretty much agree…

          He sounds like a really good “Judeo-Christian” American leader, that’s what he sounds like!

          To the monitors:
          Didn’t mean for the post to become a religious discussion but did mean it to be a gentle prod to Christian fanatics.

          [Let’s not go any further with this co-option by projection. Garland is an American AG who gave a speech based on American values welcoming new Americans. Let’s focus on that. / ~Rayne]

  6. JAFO says:

    Thank you for the detailed coverage of what few other outlets even mention minimally. Thanks also to the moderators that keep the hype, B.S. , conspiracy theories, and self promoting blathering to a minimum.

  7. Bears74 says:

    I’m very grateful for this blog, though sometimes I regret discovering it because Marcy’s clear delineations of the facts often make me angst-ridden about the future of our republic.

    Lofty ideals from Garland here, but it’s been abundantly clear that “The Rule of Law means that the law treats each of us alike: there is not one rule for friends, another for foes; one rule for the powerful, another for the powerless; a rule for the rich, another for the poor; or different rules, depending upon one’s race or ethnicity or country of origin.” is a lie we tell ourselves, continuing to believe that justice really is blind.

    • eyesoars says:

      That’s why it’s so important to keep it in mind, and do our best to make it a reality. It’s an ideal, and can not be achieved, only approached.

    • Bears74 says:

      COULD, maybe not. But justice absolutely SHOULD strive to be blind, otherwise, the only people with the power to make the system more equitable are the very same people who benefit from its inequities.

      • Belyn says:

        I understand what you say as the common interpretation. But a few years back I read an article by a black feminist prefaced by the question of who wants to be judged by a blind white woman. The viewpoint (as I have come to see it, as I recall) is why shouldn’t justice t consider specifics/contextual details? Isn’t the blind white lady (or more typically blind white man) not also an instrument of the very racial (or other sensitivities) that we of progressive politics say we aspire to?

      • Belyn says:

        Damn. My editing efforts got timed out. Here’s more what I wanted to say:

        Yes, but …. A few years back I read an article by a black feminist prefaced by asking who wants to be judged by a blind white woman. The viewpoint (as I have come to see it, as I recall) is why shouldn’t justice consider specifics/contextual details/put some flesh on the bones on this abstraction? Isn’t the blind white lady (or more typically blind white man status quo) an instrument of the very racial or other injustices that we of progressive politics say we want to be rid of? Would the risk of taking off the blindfold exceed the benefits of clinging to an illusion of impartiality — what I am reading into your SHOULD?

  8. viget says:

    The doomsday scenario I’m concerned about is that Trump genuinely does not know what classified documents were taken. I’ve been thinking, what if others in the WH or elsewhere in the waning Trump admin (cough cough Kash) actually stuffed the classified docs into the press clippings docs as a way to smuggle them out? And just used the press clippings as a convenient index/treasure map?

    Obviously Trump probably knows about the leather bound box and what’s in it. But those may be the least worrisome docs…maybe even the goldilocks docs that DOJ needs. What’s concerning is all the other stuff, especially the empty folders. We don’t know (nor probably ever will) what sorts of docs those were. And Trump may legitimately have plausible deniability over those.

    Cannon’s intervention would be causing grave harm to that investigation. It’s crazy to think, but Trump may just not be the top target of this investigation.

    • Tom-1812 says:

      We still don’t know the whole story behind this, but I can’t imagine a scenario where Trump emerges with any sort of ‘legitimate plausible deniability’, even over the empty folders.

      I do think it’s entirely possible, though, that Trump didn’t fully appreciate the value and significance of the classified information he stole. I imagine scenarios where he invites a foreign ‘guest’ to his office, shows him or her a few sample files, then says, “Make me an offer”; adding later, “There’s more where those came from.” Perhaps Trump offered deals for buying in bulk or gave seniors’ discounts.

      • John K says:

        “Trump didn’t fully appreciate the value and significance of the classified information he stole.”

        Not only that, but I find it very easy to imagine that Putin gave him a wish list of documents when they were behind closed doors in Helsinki (alongside a nice tall glass of compromat iced tea). Then, after that, a light went off in Trump’s head equating documents with the potential for cash and he was off to the races, selling information to anyone who might be interested.

    • Garrett Everhardt says:

      FBI confiscated documents from his desk. I’m going to have a hard time believing he wasn’t aware of the importance of stuff in his own desk.

      • timbo says:

        They apparently took some from the same location that he stores his passport. That’s not a good look for Trump at all.

  9. jeco says:

    Garland doesn’t sound like someone who is ready to blink or roll for trump’s intimidation efforts “the people won’t stand for it”. trump is going to get the “Rule of Law” in spite of his legions of malcontents.

    Maybe DOJ could have a fire emergency and shut the courthouse suddenly…Play hardball

  10. Orestes says:

    I had a quick question as to if the problem with security clearances and Trump’s attorneys may be some sort of reaching legal strategy since they don’t seem to have any defence. I’ve been thinking about this since Judge Cannon’s ruling on the classified documents.

    As Marcy pointed out, their clearances will surely be adjudicated negatively (I didn’t know about the FARA problem until this post, however). Nevertheless, they should be able to appeal those negative adjudications through the adjudicating authority (still OMB?). When the appeal is refused, then they have the right to take the appeal to a DOHA judge. Under normal circumstances, this could take upwards to 18 months. I’m sure this case would be expedited.

    However, could it be a delaying tactic long enough to gum up the works until Trump can announce his candidacy after the election and then be able to beat his “witch-hunt” drum and muddy the waters further?

    Or is that just an evil nightmare with no plausibility?

    [Welcome back to emptywheel. Please use a more differentiated username when you comment next as we have at least one more community member named “Orestes.” Salting the name with additional letters or numbers will work. Thanks. /~Rayne]

    • SMF88011 says:

      The fact of the matter is that Biden gets to decide in the end and a court cannot decide who gets a security clearance. If Biden comes out and says that he is denying a security clearance due to FARA concerns, there isn’t a thing that a court can do about it. Personally, I would just go ahead and wait until the initial denial and then have Biden announce that he found that the adjudicators decision to be appropriate. Judge Cannon could then try to say that she overrides that decision but it isn’t within her power to do so.

      • earlofhuntingdon says:

        Part of Cannon’s chess game here would be to tempt Biden to hoist himself on his own petard, in any manner of ways. He won’t. Biden will stick to normal, pre-Trump clearance procedures and keep himself out of it. That’s what he has a fully-staffed government to do.

        The president might be the final arbiter regarding clearances and the confidentiality of USG documents. But only Trump took that literally. He inserted himself into the process, for example, to give his son-in-law and others clearances they had no objective right to, and claimed a process-free right to declare any document he wanted “declassified.”

        (Trump has yet to provide evidence, barring liability-free comments to the press, that he ever actually took that step. It’s more likely he just disregarded the rules and acted as if he had declassified what interested him,)

      • timbo says:

        Who can and cannot get a security clearance might be subject to judicial review. For instance, you likely cannot Constitutionally deny a security clearance for someone based solely on their race, creed, religion, etc.

      • Thomas Paine says:

        Yes. The Govt. could stipulate that they would provide examination of the documents to a defense attorney who is understands national security law AND is clearable, like Bradley Moss, ESQ. The problem is that Mr. Moss won’t work for Trump and Trump wouldn’t want to hear what Moss would tell him to do, anyway. Looks like a real Catch-22. Hopefully the 11th Circuit will put this turd back in the toilet bowl.

      • 808HL says:

        I hope this helps, this is a quote taken from the main body of this post written by Marcy:

        “In a normal situation, Trump would be told to go find a lawyer with clearance (with the added benefit, to him, that they might know a bit about national security law).”

      • Puriya says:

        bmaz, you keep saying this, so can you tell us what he did wrong, or what you would have done? It would help many of us non-lawyers understand this better.

        • emptywheel says:

          I think bmaz believes Garland should never have unsealed the affidavit and moved more quickly to arrest.

          I think the latter was not doable. The former was a decision about how to gain legitimacy that may or may not work.

          I think DOJ did not respond aggressively enough to Trump’s civil request, and I think bmaz agrees.

          • bmaz says:

            No, no comment as to arrest. Go only where the facts and elements of criminal offenses are. That is different than what a lot of people think. But the lame unsealing begets where DOJ finds itself. Continuously.

            • Rugger9 says:

              I’ll agree with you on this one, but for a separate reason. I’m reasonably sure that AG Garland felt this small gesture would be leveraged into better cooperation, but he’s making a fundamental error.

              You can’t make deals with dishonest people, especially when they’re crazy and willing to do absolutely anything.

              • skyscraper says:

                Yes, thanks to both of you for clarifying where Garland may have gone astray. I read what’s posted here closely (because, seriously, where else are you going to hear analysis like this) and I truly did not know bmaz’s argument on this.

                • bmaz says:

                  Just to be clear, it may yet work out okay for Garland and DOJ. That is just not how I have ever known them to act. And they had not need have. By the same token I worry about things most here do not. The unsealing part is problematic to all potential defendants going forward. This is not just about Trump.

          • civil says:

            Do you ever contact the DOJ or the J6 Committee or some other government entity and suggest that they take some action or that they pay attention to some evidence that they seem oblivious to? (I’m thinking about actions / evidence that people discuss in columns here rather than general contact with one’s members of Congress.)

            I called the J6 Committee’s general contact # (https://january6th.house.gov/contact) a while back and suggested that they have a staffer read some of your columns, as I thought they’d benefit from thinking about some of the connections you’d drawn. I no longer recall what I was trying to draw their attention to, perhaps it was about the Alex Jones/Oath Keepers/East Steps connections.

        • Opiwan says:

          I asked the same question about ten Dr. Wheeler posts ago. His response to me was that just about everything since deciding to raid MaL has been utter crap, to paraphrase. The warrant, the raid, the release of the warrant petition(s), etc.

    • Mister Sterling says:

      I respect Garland for his commitment. He can’t backtrack now. And he wouldn’t have proceeded unless the evidence against Trump was overwhelming. But I fear it is too little too late. We’re out of time. And Trump’s judges are going to help him run out the clock.
      Having said that, I think Trump is being just as foolish now as he was when he started bringing classified documents to his properties. He really thinks that stealing the 2024 election is his ticket to immunity. A better move would be to flee the country. But he thinks very highly of his chances in 2024. That should give us all pause. We are not done with this guy.

  11. JohnForde says:

    So judge Cannon is ordering DOJ to provide access to Top Secret documents to 3 witnesses to the crime and one foreign agent? I assume DOJ isn’t doin that even if it means defiance of a court order.
    So what remedy does AC impose? She can’t dismiss charges that have not yet been filed. Does she issue an even broader and crazier order?
    I’d like to know since our constitutional crisis apparently is only 28 hours away.

    • jeco says:

      I think she’d bring the senior most DOJ official she could get to her court and jail them indefinitely for contempt until DOJ complied. If she’s totally crazy I guess she could send court officers to get Garland and jail him. She’s pretty loco. What would Ginny Thomas do in this situation, thats a pretty good guide!

      • Puriya says:

        Quite the thought. But perhaps DoJ can delay their reluctance to share through delaying clearances? So it doesn’t get to the point of defying court orders, which, in addition to all the other issues, would be precedent-setting within DoJ, right? I mean in their internal procedures?

      • pdaly says:

        As bmaz has mentioned on this site many times, indicting Trump in DC District Court on a criminal charge, any charge (and then the indictment could be superseded later), could move this out of Cannon’s FL civil court.

        Would indicting Trump permanently liberate from Cannon’s hands these “contested” MaL documents with classification markings and NDI from August’s legal search and seizure?

        After such a DC indictment, can DoJ then resume using, unencumbered, the 8/8/22 legally retrieved MaL documents in all the ways needed to investigate the crimes it listed in the MaL search warrant?

        Or does the DoJ need to perform additional litigation from DC to disengage her hooks on these documents?

        • Rugger9 says:

          Jailing DoJ, DoD and NARA officials for doing their jobs would certainly give DoJ perfectly good grounds for demanding that the 11th Circuit and SCOTUS remand these to the DC Circuit since Cannon has clearly demonstrated her lack of competence regarding classified materials.

        • timbo says:

          DOJ might not necessarily even have to indict Twitler to get this done. For instance, they could indict one of Twitler’s lawyers, maybe Cocoran for instance, to get this thing moved up and over to DC possibly? The thing is that Garland is likely going to be moving cautiously from now on, given that Cannon has openly taken sides prior to a criminal indictment. I doubt that he had an inkling that a Federal judge would step in to help Trump avoid indictment in this sort of brazen and abrupt manner.

      • Fenix says:

        Could she actually accomplish this? Is this actually a possibility? ‘Judge’ Cannon jailing DoJ officials?! Now I’m really feeling anxiety!

        • timbo says:

          Perhaps it is now a “race against time” for both parties at this point? Certainly feels like we’ve entered another stage in the crisis our Republic has been descending into for some time now.

    • Badger Robert says:

      As Ms. Wheeler wrote, there are parts of the judge’s order that the DoJ, the DirofNatIntell and the President will never comply with. And I doubt she intends to make the comply. The point is to poison all the 18 USC 793 evidence so that the charges against Trump and his co-conspirators cannot be prosecuted.

  12. Bob says:

    Hat’s off to Marcie for following and illuminating the legal ins and outs.

    However, isn’t the real point of the Special Master and a friendly judge that of delay ?

    By delaying DOJ, Donald and his friends are creating a giant furball that will be used to delay any legal / law enforcement / judicial conclusion. And then folks will simply get tired of the whole mess,
    get tired of the drama in which the conclusion is of Donald skating away into the sunset.

    [THIRD REQUEST: Please use a more differentiated username. This site already has several community members named “Bob,” “Rob,” or “Robert” as explained in your third comment. /~Rayne]

    • Opiwan says:

      I was wondering why everything had to go to Brooklyn, too. He has next to nothing on his court calendar (3 listings, one of which is the hearing scheduled tomorrow), so it’s not like he has a lot of pending business to attend to that could interfere with others’ due process rights.

    • Badger Robert says:

      The material must be in proper storage in Florida or in Washington.
      Simpler to move Judge Dearie than move the documents.

  13. waban1966 says:

    The “court legitimacy” dynamics now get interesting, with the 6 judges appointed by Trump on the 11th Circuit. No matter what judges initially decide the stay motion (e.g. a panel of the “most extreme” Trump appointees), it looks like the stay motion can be heard en banc, but only by request of judges — parties can’t ask for it. True, 6 is a bare majority of the 11 judges. As others have observed, that means Trump appointees could carry the day even en banc (one I think has a possible conflict, but a tie vote doesn’t change these dynamics because it would affirm Cannon). That said, as Circuit Court appointees they do not have the same “promotion” considerations as Cannon, and could rule against Trump.

    Combine this with the fact that any one judge can call for a vote to hear the case en banc. And even if that is denied, the minority 5 could publish a dissent from denial of en banc hearing. Which means that it would be perfectly clear that ALL 6 Trump judges are just like Cannon. Not one of them could hide behind “it wasn’t me, just the judges on the panel,” even if a denial was unsigned. Indeed the minority five could force the en banc hearing procedural vote even if the 11th circuit denies the stay in some unsigned panel opinion (trying to allow every Trump-appointed judge to be able to claim it wasn’t them, by implicitly pointing at the others). This would really heighten the legitimacy issues.

    Perhaps after Dobbs there is some desire on some appellate judges (given CJ Roberts recent speech) to not do another thing that is utterly destructive of legitimacy. So perhaps the 5 can influence at least one by using this legitimacy issue and inability to hide on it.

    And the 5th vote in an 11th Circuit non-Trump minority is CJ Prior, who is a Jeff Sessions guy (no love lost with Trump) and upheld an espionage conviction that involved FISA and CIPA (the so-called Cuban Five). Perhaps also a rule of law guy; when Alabama AG, he prosecuted Roy Moore for refusing to obey a federal court order. If he joined even a dissent from en banc rehearing, it would heighten the legitimacy issue even further.

    Same dynamic at SCOTUS, given CJ Roberts’ legitimacy concerns (no matter what one thinks of his role in them). Perhaps reading too much in, he made those at the 10th Circuit conference, which is Justice Gorsuch’s home turf. So maybe Gorsuch could be swayed on this issue too, if nothing else from the legitimacy issues. And given Pryor’s conservative bona fides, maybe his vote at CA11 has some influence.

    In short, could the crisis of court legitimacy brought to a razor-edge by Dobbs actually matter here, because appellate judges can be called out by name?

    To be sure, whether the press and/or public care isn’t so clear, and whether the Democrats can (or would) exploit it. But at least as a technical matter every Trump-appointed 11th Circuit judge can be forced to be on record.

    • waban1966 says:

      One additional point. Even if a motions panel is a majority of Obama/Clinton appointees, they would be smart to refer it en banc either before or after they rule. The case is going to SCOTUS either way. There is no reason to create the political dynamic of democratic-president appointed judges making the decision alone. Force it even if it means you lose 6-5 at the 11th Circuit. Avoid the bad optics and force Republican party appointed judges to decide.

      The only path otherwise is a 2-1 democratic-appointed panel imposing a stay of Judge Cannon’s order, and a SCOTUS denial to consider a motion to vacate a stay. That seems like a super long-shot, at best. And even so, really bad for the political dynamic.

      As Marcy says, it’s a crisis. So be it. Either CJ Roberts and J Gorsuch are on board for rule of law, or they aren’t. Their votes will be important at every step along the way of a Trump prosecution. Might as well find out before an election where it might matter at the margins.

      • earlofhuntingdon says:

        Judges tend to guard their authority more jealously. And I think you’ll find that 11th Cir. rules do not provide for an en banc rehearing for this type of appeal. The recourse is direct to the S.Ct.

        • waban1966 says:

          Fair point on guarding the authority, I hadn’t fully factored that in regarding a panel not wanting to refer it. But if you are in what looks to be a minority, and it’s really a crisis, even a judge not on the panel could be the one asking (if it works).

          I read the rule to say that the losing party on a stay pending certainly could not “petition” for en banc, but that the judges themselves could refer any “appeal or proceeding.” Perhaps that means only the entire appeal. I come from an area where “proceeding” means any motion, and on a quick look the various kinds of matters are referred to as appeals, petitions, review of agency rulings, etc., not “proceedings.” It could be that those are collectively “proceedings,” which would rule out my theory of judges themselves potentially hearing the motion for stay by itself en banc.

          Your comment got me to look again, and I am curious whether others think that a judge asking to poll the court about en banc could also ask to send the case to en banc immediately. The rule talks about “heard or reheard.” Which suggests that the case could straight to en banc. Not that I have ever heard of that happening. But if there even was a case of “a question of exceptional importance,” it’s this one.

          The attempt to send it to en banc might fail, but that’s not the point. It’s creating the opportunity for a dissent from the refusal to send it en banc. Thereby requiring judges to go “on record.” Basically we are talking about the maneuvering in the “shadow docket” of these courts. Certainly non-expert here.

      • AgainBrain says:

        Strongly agree, time to start calling their bluffs! Better to know the lay of the land prior to the elections (which will be a legal shitshow, at best), and start beating the anti-rule-of-law judges up for their lawless positions in advance.

        No quarters given, every bluff challenged. They have no honor, so there’s no point in negotiation, they’ll instantly betray anything. Show this moral jetsam that not only will we no longer tolerate their (illegal) atrocities, but that continued pushing of us is the very last thing they want to be doing. Drown them and their corrupt lawyers in actions. Make them regret ever even thinking that facing off against one of the largest LEOs on the planet was a good idea.

      • AgainBrain says:

        Further, to be crystal clear, not suggesting any laws be bent or broken. However, protecting the rule of demands nothing less than making an example of those who dare to challenge it in the most public, visible means possible. Don’t make them an scary example, and it’ll just embolden these (and other) cretins further.

        The FBI should have opened Abbott’s and DeSantis’ human trafficking / reckless disregard / kidnapping cases before the sun set that day.

    • brucefan says:

      A “tell” in tomorrow’s filing? In hindsight, the tone of Trump’s district court filings suggests (to me) an awareness that the judge was going his way. Let’s hope tomorrow’s filling is more professional, suggesting a greater chance of an open minded decision maker.

    • Puriya says:

      waban1966, thanks for this informative post. I looked up the judges in Ballotpedia following someone else’s comment. All I could tell about the CJ, Pryor, was that he appears to have been the third judge (with Hardiman) under consideration for scotus when Gorsuch was finally chosen. But that was all I knew, so your comments on Pryor gave me some more background.

      Newsome clerked for Souter. I’m taking that as a hopeful sign.

      • AndTheSlithyToves says:

        Pyror is thoroughly compromised. Check out Legal Schnauzer’s blogspot site for his full story.
        Also, don’t forget he’s part and parcel with the Alabama/Sessions/Shelby/Deripaska/cabal/mob.

  14. Doctor My Eyes says:

    Apologies for not having time to read all the comments before posting.

    Thank you for this timely, profound post. I started reading here voraciously as a soothing antidote to the deluge of lying in public in combination with failure of mainstream media to respect truth over bothsidesism. It is not an accident that science and the courts are under fierce assault from authoritarians: these are institutions with a system in place for distinguishing lies from truth. I cling to the truth as a saving lifeline–when humans lose ability to set themselves aside in order to see things objectively, they become capable of committing any atrocity.

    Recent days have been particularly rough for me emotionally. After months of assuring us that DOJ is doing a good job handling the J6 challenge, and by implication the general Trump challenge, Bmaz went off on them, calling their responses to Cannon’s attack on the structure of law a “clown car”. Earl of Huntington echoed these comments. A couple of years of reading here have caused me to respect and trust the insights of the principles. In the past I have learned here that, legally speaking, things are not as off the rails as they may seem. But these days, not so much.

    By chance, I suppose, this morning I have read of two deeply disturbing perversions of the law, which is to say, psychotic dreams being treated as reality by the court. This is an eye-opening, simple account of the actual status of the pawns flown to Marthas Vineyard.
    https://threadreaderapp.com/thread/1570828946308206593.html

    Short version–they are not illegal immigrants. They are asylum seekers whose stories are strong enough (horrendous enough) that they made it through initial screening without being sent back. They were given court dates in cities not in Texas. There is a system in place for feeding them a meal or two, sometimes giving them overnight lodging, and then putting them on buses to the cities in which they must appear. As Cannon has done, DeSantis and accomplices are throwing a wrecking ball into a legal process, creating a problem in the asylum process that did not exist before with people who are not drug dealers and rapists.

    Also, I happened to read the facts behind the SCOTUS case involving the man who claimed he was fired for praying privately and then was not rehired. The facts are that he was not fired, that his prayer wasn’t private, and that he never applied to be rehired. A lawyer attempting to bring these objective facts before SCOTUS was interrupted by Alito: “I know you want to make this complicated.” The prospect of living in Alito’s uncomplicated world, free of pesky facts, chills me to the bone.

    Thanks for this website. May human dignity persist. May we have the humility to acknowledge the truth of the objective world, even when it is inconvenient or painful to do so.

    ‘Beauty is truth, truth beauty,—that is all
    Ye know on earth, and all ye need to know.’

      • Stimfig says:

        So pleased to hear someone quote Rumpole- “If I don’t like the way the times are moving, I shall refuse to accompany them.”

    • Scott Rose says:

      The post at that link may not be entirely correct.

      I have no direct knowledge of the individuals flown to Martha’s Vineyard, but I did hear some of them interviewed by Spanish-speaking reporters, and it’s plain from the way the immigrants speak Spanish that they are Venezuelans.

      Venezuelans newly-arrived in the U.S. and without other authorization to be here have been granted Temporary Protected Status until March 10, 2024. They thus are here under TPS terms, and most are not asylum seekers. Meaning, they don’t have hearings pending in Texas or any other state. This would at least in part explain why they so eagerly accepted the deceitful promises of financial assistance and professional training and so on through which they were lured onto the plane to the Vineyard.

      • bidrec says:

        Note that Venezuelans have invested billions and billions of dollars in the US. For that reason alone they should be welcomed. Also, aside from “financial assistance and professional training”, toilet paper. Toilet paper is very scarce in Venezuela.

      • Doctor My Eyes says:

        Thanks for the clarification on temporary protected status. The lawyer on MV said many of them have court dates scheduled in various cities for TODAY, so whatever their precise status, the lawyer said that some of them have court dates.

        • P J Evans says:

          That was part of the scheme: they were assigned addresses at various shelters across the country and given court dates that the people doing the assigning new were false addresses and court dates that they could not make. It certainly implies help from DHS/INS/CBP employees.

    • Paulka says:

      As a followup on the religious firing issue-Kennedy vs Bremerton case. It is far worse than you described. If I recall correctly, the dissent included pictures that directly refuted the “private prayer”, aspect of the case. The pictures clearly showed a whole bunch of people praying at Kennedy’s direction. So, when Alito can lie so blatantly and not care, that is truly frightening.

  15. skua says:

    I’m looking at what Trump has caused by going to Cannon from the viewpoint of a analyzer of systems/gameplayer.
    So much trouble made by Cannon building on a “whack filing” by lawyer Corcoran.

    Questions for the judicially qualified here: Do you or a close colleague have the knowledge and skills to create the kind of trouble Cannon has? Could you, or they, do it alone in the time Cannon has had since the first filing on 08/22/2022?

  16. cmarlowe says:

    May seem a bit OT, but I don’t think it is. I think it is very timely. If you have a chance, take 2 hours and watch episode 1 of the just released Ken Burns “U.S. and the Holocaust” on PBS. Warning: it won’t make you feel good.

    • hester says:

      I couldn’t agree more. It is very relevant. I’ve learned that it was initially scheduled to air after the New Year … but it’s airing now.

      To your point it gave me some insights about this country and part of it’s underbelly. Very relevant to me as my dad fled Nazi Austria in 1938 and was privileged to find a home here.

      People are terrified of change, of the other, of loss..

      • cmarlowe says:

        Of course glad your dad made it out of there. My people came here earlier in the 1900s/1910s. I remember my grandfather talking about the vacations they would take (1930s road trips) and mentioning that there were a lot of places they were just afraid to go.

        • ScorpioJones, III says:

          My grandpa and his family came to the US 1905; ending a journey that led them from Russia (The Pale) to East Prussia (Now Poland) and to Ellis Island. Pop was listed as “babe in arms” I didn’t get a version of “the talk”, but I certainly understand your folks concern. I dont think I can watch the Ken Burns stuff. Hope you folks understand.

    • Flatulus says:

      The parallels between Hitler’s rise and Trump’s were truly disturbing – particularly after hearing and watching Garland’s speech.
      I had to stop watching “U.S. and the Holocaust” near the end after my heart rhythm became irregular. I pray that I live long enough to shit on Trump’s grave.

  17. WilliamOckham says:

    I’ve held off on making the following comment because, as bmaz would say, it is a wild conspiracy theory with no evidence. On the other hand, I almost wish it were true because I would have more hope that further constitutional crises could be averted by the court of appeals.

    Although I’m no lawyer, I’ve read lots and lots of legal writing (court opinions, legal briefs, etc.). One thing I’ve noticed is that legal writing, more than any other type of communication that I’m familiar with, tends to be internally consistent. That is, no matter how bad a brief or opinion is, it coheres. Even somebody like Larry Klayman usually manages to make his briefs internally consistent, even when his thesis is total rubbish.

    And Judge Cannon’s work in this case just isn’t internally consistent. In her opinions and orders, there are strange leaps of logic that seem inexplicable. Even reading her work and accepting as true the false factual predicates and misstatements of the law, none of it really makes any sense.

    And, as you might guess from my moniker here, I’m partial to a particular mode of inquiry which suggests that, if one must introduce unknowns into an explanation, one should introduce as few as possible. So, I have been asking myself is there one additional unstated factor would lend internal coherence to what Judge Cannon is doing. And if so, why is it unstated in her opinions and orders?

    And the only one I can come up with is this. What if Judge Cannon believes Donald Trump is still POTUS? That’s completely ridiculous. And yet, when I go back to read what she’s written, it all is so much more consistent if you assume she believes that and knows better than to say it out loud.

    Now, I know this is wrong, at least in the sense of “all models are wrong, some models are useful”. So, the question I really have is, is it useful to think of it this way? I honestly don’t know if it is, even if it’s “true”.

    • Rayne says:

      I have wondered if more than one person was contributing to Cannon’s writings. This could explain some of the internal inconsistencies.

      But then who as an unacknowledged co-author would/could believe Trump is still POTUS?

      • Savage Librarian says:

        I can think of several people that Cannon may turn to for advice. But that would only be speculation.

        A group effort is plausible to me because that is what happened in my personal experience. Policies I objected to were the result of group coordination. The mindset and actions of more than a handful of individuals were very much like the irrational language and behavior of this judge.

        My own concerns and language were hijacked and twisted to use against me. It was very much a power struggle where perjury and smear tactics were freely utilized by my adversaries.

        But, in the end, I was the last one standing. Individuals can make a difference, especially if they are determined to invoke the rule of law.

      • Cheez Whiz says:

        I read somewhere that Cannon has 2 clerks, a standard compliment for a judge at her level, both (natch) Federalist Society cogs. Would they likely be involved in the writing process?

        The root of WilliamOckham’s question is “why do the majority of Republicans support Trump” in the first place, and there are many different reasons that boil down to 1: he owns the Base, and without the Base the Republican Party may as well change its name to the Free-Soil Party. So like virtually all Republican office holders, the simplest explanation is judge Cannon sees herself as Republican first, judge second.

      • Ddub says:

        I find the counterfactual hard to believe:
        A freshly installed district judge has the wherewithal to gum up a case (national security no less) so successfully. That’s top marks.
        Just read eofh’s comment dwownthread so, maybe she could be that star student.

      • Peterr says:

        Judges use their clerks in different ways, but at least some of them invite the clerks to help in the drafting process. I could see Cannon doing something like this, but not being used to how to take the work of multiple drafters and weave it into a more coherent whole.

        • Rayne says:

          Not difficult with a collaborative drafting environment and I say that from experience. A good editor knows how to pull different pieces into fairly cohesive piece. I’m wondering who the ‘editor’ is on staff.

      • Vinnie Gambone says:

        Anatomy of Deceit could not have been easy for Ms. Wheeler to complete.It concentrated on the deceivers.

        Who ever will be able to write Anatomy of Delusion which hopefully will be about the deluded and how they become that way.

    • Gee says:

      I’ve had a similar thought – not that they believe Trump is STILL President, but that he ought to be, because the election was stolen, and we are still trying to prove it (and there is ample evidence to show that they really are trying to still steal the election via their proof that it was stolen from them.) Thus, the theft of documents rightfully owned is sort of a tit for tat. You steal from us, we steal our stuff back. Now we are sort of even, and through the courts, we will figure out who really is President. Because, in a way, if Trump the private citizen owns national defense info and Top Secret docs, who is to say he is not an acting President? It really blows the mind, but that is the constitutional crisis we appear to be heading into. And if we DONT head into it, it’s really then just a way to create a delay game that can be headed off by Trump announcing his candidacy, and then having another series of legal battles about why you can’t go after him on any of this. (Then again, IANAL, and dont know jack, so this could all be horseshite.)

      • Gee says:

        I guess another way of stating my point is, with these documents in hand (and they may well be in hand, because of the empty folders), Trump could be conducting a shadow foreign policy as we speak. Basically, his argument to foreign leaders is, here is the info, here is what I plan to do, here is how it will be when I am either reinstated (absurd, but what’s to stop him saying it?) or when I am re-elected, which is what all of this fuss is about getting him to. The reality is, he can be undercutting Biden’s and Blinken’s job of conducting foreign policy given the current situation. The guy is a walking talking national security threat, and somehow we have this hack Federalist Society judge impeding our country’s ability to contain or remediate the damage.

        • earlofhuntingdon says:

          The focus on national goals seems misplaced. Trump is more likely conducting Me Policy and My Pocketbook Policy.

          • Rayne says:

            Unless he’s been/being compensated by a “sponsor” to perform shadow policy, with a possible aim at terrorizing the US intelligence community.

            • earlofhuntingdon says:

              Former President Merkin Muffley would say that’s not an act of national policy and that there are still options open to him. (We needn’t digress into the meaning of his baldness and first name.)

          • Gee says:

            I don’t disagree at all that this is his primary MO. But he also has a lot hatred, and he may be using that vitriol to avenge slights. Revenge is definitely pretty near the top of his hierarchy of needs after money and prestige – it’s completely interwoven with them though as well I’d think. He will act against anyone that attempts to take his $, or prevent him from getting more. Especially if those people are non-white males.

        • RooDude says:

          Perhaps I’m a bit off but I’m also reminded of the Windsor File? Thanks to “The Crown” for bringing that back to our collective memory. Making Attempts by any means (domestic or foreign?) to be reinstated.
          Thanks to all – INAL and reading your posts with the copious comments, while oft overwhelming to me, do make me feel that I’m doing my best to keep up with this madness.

    • Doug Kane says:

      Well, I am a lawyer, and I have noticed the same thing. As Dr. Wheeler and others have pointed out over time, there have been some questionable decisions made by some judges appointed by Trump (such as Carl Nichol’s ruling in the Miller case), but even they have the kind of internal consistency that you describe. In a quarter century of practicing law, plus following closely cases of national significance, I have never seen anything like Judge Cannon’s rulings. There is something going on here that is beyond our view.

      • FL Resister says:

        I think you are correct. We have never seen such blatant refusal to acknowledge facts by a judge in a case this important.

        Maybe Cannon and her crew are dyed in the wool believers in a myth spun into them since grade school. Groomed perhaps to make the male authoritarian final word in everything.

        What’s next from the 11th — more brainwashed delusion or will reason prevail?

      • jdmckay says:

        There is something going on here that is beyond our view

        I think the same, have said so in comments here a couple times recently. I find it unbelievable Cannon, given her education and legal experience, does not know exactly how contorted/dishonest/not-informed-by-law so much of what she has done…. is.

        I cannot fathom she would put herself at such huge risk legally/morally without something more then trivial support from important “movers and shakers” in the dark world she appears to inhabit.

        The thing that drive me crazy about this more then anything, all the massively wasted time, wasted effort and obscured purpose of our country in the service of all this otherwise unintelligible bull shit. It is ugly, dirty, looks like evil to me.

        Hardly any national conversation of increasily self evident reality large areas here and across the globe are running out of water. Or buried under it. The climate thing.

        Last 3 years I’ve spent the school year living in Ho Chi Mihn City teaching English in public schools. I’m growing increasingly comfortable with life here, very different from U.S. but rich. For some time there has been a national law here making it illegal to post a known lie on the internet. The exact language is very short: you will face consequences for posting a lie on the internet.

        I am unaware of any prosecution for this since I’ve been here. Friends I’ve made don’t think much of the law, it just doesn’t seem that important because they don’t have much conspiracy theory stuff show up. And most of ’em I’ve gotten to know have looked at this stuff flooding US media everyday and just shake their collective heads and say something like “what is going on in the US?”.

        Thanks again Marcy. (hug for BMAZ!!! g )

        • hollywood says:

          “I find it unbelievable Cannon, given her education and legal experience, does not know exactly how contorted/dishonest/not-informed-by-law so much of what she has done…. is.”
          Yes, that raises the $64 dollar question.

      • earlofhuntingdon says:

        Forest, trees. Look beyond the right’s refrain that Trump is still president. That’s a ruse to own and profit from the rubes. The goal is to make him president again, and thereby remake America as a fascist state. The models are plentiful: Hungary, Poland, Brazil

        A necessary means to that end is to break down the rule of law, and all the social restraints dependent on it, starting with the governance of elections. The most immediate and effective way to do that is to ensure that Trump cannot be held to account. That’s a demonstration of enormous power.

        • ScorpioJones, III says:

          Meanwhile in Sochi, the Vohzd takes a brief respite from his travails in Ukraine to giggle at the chaos he helped foment.

        • Yorkville Kangaroo says:

          Much if what we are seeing played out here could simply be a vehicle to ensure the case goes to SCOTUS. It is well known that SCOTUS now have a majority of proponents that believe that the Executive Branch of government has far more power than it has been allowed to exert in the past. This would be the perfect, seemingly (to the plebs), unremarkable case for the Federalist cause to delineate Executive practice to align with its own worldview, set precedent and off they go.

    • Bugboy says:

      “What if Judge Cannon believes Donald Trump is still POTUS?”
      I think it might be more along the lines of “Judge Cannon believes Donald Trump believes he is still POTUS” and willfully suspends her own disbelief in order to reconcile her debt to the FPOTUS. “Blind Justice”, in other words, takes the FPOTUS at his word/belief…

    • John Paul Jones says:

      Thank you William, for going out on a limb. For myself, I don’t think it’s wrong at all, in fact, I repeatedly found myself wondering the very same thing, i.e., “It’s as if she believes he is still President, that he didn’t lose the election.” As to whether it’s true, only Cannon knows, but the supposition makes sense of her actions in a way that literally nothing else does.

      • Eastern Ash says:

        You were quicker than I in this expression of appreciation, JPJ.

        William O’s reflection demonstrates the insightful expansive reach that taut imaginative reasoning has over, shall we say, flaccid speculation.

        Albert Einstein, no slack thinker, left in his intellectual footprints ample evidence of the weight of imagination, which he lauded for exceeding the limits of knowledge. True, he might have made a lousy lawyer, but we expect nonetheless he would have been a worthy companion in these comment threads.

      • Sue 'em Queequeg says:

        If you take the view that Judge Cannon is perhaps more a system-gamer than a fantasy-indulger, no particular belief is necessary; everything becomes a question of what opens more possibilities or solves more problems. If the game is confusion-casting and off-balance-keeping, then thinking of TFG’s current relationship to the presidency as yet another “open question” is handy simply because it gives you more to work with.

    • Silly but True says:

      I generally agree with you on the oddness, but disagree on the specific “unknown.”

      Rather than belief that Trump remains POTUS, rather I think it may stem from belief by Cannon in a possibility of a POTUS declassification of the records. That is, on or before the morning of January 20, 2021, while still President, Trump waved his magic declassification-wand over the some 30+ boxes, or the documents within those boxes, all still waiting in the White House to be loaded on a truck to Mara-lago — declassifying everything that had already been curated from his Presidential Records to be retained as his own private papers.

      In this case, nothing classified would have left the White House; all certifications given by transition team its lawyers, its custodians-of-record, et. al. could in good, legal faith state that there were no classified documents. At the point of any POTUS declassification, the entirety of the records became unclassified documents.

      Now, the a big criticism has been that any such bulk declassification is atypical from the normal, agency declassification process required for non-POTUS government employees; “That’s not normal!” it goes. Any that may be correct.

      But I have a feeling we’re quickly approaching a deep dive into the powers and limits to which they might exist are associated with POTUS’ own individual and specially unique classification and declassification powers.

      I don’t know if Cannon is certain or not to that, but may want to preserve the possibility that it gets established or not.

      OOH, if it occurred, then everything might need to go back to Trump, and DoJ could probably, maybe try again on the “general, non-classified document theft” angle. But, the theft angle is going to be a bit tougher to make since it was the government who almost certainly gave Trump his copies, probably without any direction that the President had to return them to some subordinate Executive Branch government employee, and the time to reasonably claw them back would have been at end of the meetings where they were distributed not months later; in cases, Trump may have had the documents for years before the US government claimed they needed them back.

    • Puriya says:

      I don’t think that’s the solution making use of the minimum unknowns. There’s no need for any additional unknown at all. She’s just throwing a lot of things out there, many disconsonant, to keep Trump out of jail. Not only out of a sense of loyalty because he appointed her, but because she sees his Presidency, correctly, as having furthered crazily conservative goals, mostly through his judicial appointments.

      She knows she does not need to be consistent, and has been more effective because she has not constrained herself to be consistent. There are no charges, so she doesn’t have to hold herself to comment on anything in particular. The more things she throws out there, the more opportunities for someone grasping for a point in the Court of Appeals. Perhaps internally consistent legal writings are such because they need to consider a concrete set of charges?

      At first I thought perhaps she was just incompetent. But now I think she knows what she’s doing.

      • timbo says:

        Personally, I think this is about more than Trump here. This is maybe also about Cannon. And maybe others like Graham and McCarthy, etc. Basically, anyone who might have been in the know that these documents were at Mar-a-Lago and did not immediately tell the DNI/NARA about that interesting fact.

          • timbo says:

            I do not. But clearly McCarthy and Graham have been there. It wouldn’t be unusual for a newly appointed local federal judge to be at Mar-a-Lago if Senator Graham were visiting…

            Here’s one such example of Graham co-hosted a golf-tournament there with Trump:

            https://www.washingtonpost.com/politics/2021/12/16/trump-gop-candidates-fundraisers/

            There’s other articles out there that show Graham going to Mar-a-Lago in Feb 2021. Etc.

            So, I’m saying it is not unlikely that Cannon might have been there one of those times, given that she’s a new Federal judge appointed by Trump, and Graham was the chair of the US Senate Justice Committee when that appointment was made.

            Again, why would Cannon not be there at some point is a better point to ask…rather than assume that she hasn’t been. She lives in Florida, Graham was the Chair of the Justice Committee when Cannon was appointed, Trump appointed her, and recently too, like one of his last appointments to the Federal bench. Not sure why you’re maintaining that I need more than that to make a statement that it is likely that Cannon has been to Mar-a-Lago after Jan 20, 2021.

            • Yorkville Kangaroo says:

              “Not sure why you’re maintaining that I need more than that to make a statement that it is likely that Cannon has been to Mar-a-Lago after Jan 20, 2021.”

              Because ‘likeliness’ means that it’s more than probable and you’re talking to a bunch of lawyers.

              You have absolutely no reason to infer what you have inferred based on what you’ve offered as ‘reasoning’ let alone proof.

    • Ken Muldrew says:

      What if Judge Cannon believes Donald Trump is still POTUS? … it all is so much more consistent if you assume she believes that and knows better than to say it out loud.

      Although your suggestion is based on consistency, not what she actually says out loud, it is notable that in the Motion to Appoint Special Master Hearing of Sept. 1, 2022, Cannon uses “former” to describe Trump’s presidential status several times:

      p. 20 “I mean, you are essentially asking, for purposes of the Fourth Amendment, to say there is no reasonable expectation of privacy in the context of the search involving premises that are unquestioningly controlled by the former President.”

      p. 23 “Isn’t that also because there has never been a seizure of this magnitude of a former president?”

      p. 24 “It seems to me like you are potentially overreading Nixon; and to say now that there is absolutely no room for a former executive to raise a claim of executive privilege,”

      So she is saying (out loud) that Trump is no longer the President, whatever her actual beliefs might be.

      • Susan D. Einbinder says:

        Whether she insanely believes that Trump is still president (which would qualify her for a psychiatric evaluation at minimum), it is possible that she is receiving guidance from lawyers at the Federal Society, isn’t it? I’m not suggesting a conspiracy but this type of thing (consulting senior, more seasoned experts) is very common in academia. That would explain the differences in style and inconsistencies in her writing.

    • WilliamOckham says:

      Writing comments like this helps me clarify my own thinking and often opens up new ways of looking at things. Here’s another simple model for resolving the conundrum of the missing consistency. Suppose, instead of Cannon really thinking that Trump is still POTUS, that she is simply outcome oriented in the manner of the abortion and school prayer cases.

      To get the outcome she wants, she has to accept the ludicrous assertions in Trump’s briefs. And she simply didn’t bother to try to make them make sense because she just doesn’t care.

  18. BROUX says:

    I am not a lawyer, but how clever are the shenanigans of the relatively inexperienced Judge Cannon and the various clever traps that she is setting up for the job Special Master Dearie? Is this run-of-the-mill type of monkey-wrench, or does it feel that there has been some coordination with Trump’s defense team to create such a mess? Is she writing this stuff alone?

    • earlofhuntingdon says:

      The connection between Cannon and Trump’s lawyers need not be that overt. (Cannon seems to have a better sense of self-preservation than that.) It seems more likely their coordination arises from the same priority: to save Trump, his party, and thereby the country – in their radical and overtly unconstitutional version of it.

      Cannon’s “shenanigans” – too polite a word for her abuse of legal proceedings – are good and multi-layered. She knows the criminal law well. She worked for the DoJ before law school, graduated near the top of her class at Michigan Law, clerked for a federal appeals court judge, spent four years with a white shoe law firm and eight years as an AUSA for the SDFL. Four of those eight were as a criminal appeals attorney.

      She has no aptitude for judging; her aptitude is for how to abuse the law for political ends, which suggests her ambition is profound. But she knows the criminal law.

      • Scott Rose says:

        Note that Judge Aileen Cannon was judge in the matter of Paul Vernon Hoeffer, who threatened Pelosi and AOC. He later pleaded guilty to three counts of interstate transmission of threats to kidnap or injure.

        The federal sentencing guideline range was between 33 and 41 months in prison. Prosecutors asked Cannon to sentence Hoeffer to the full 41 months, to send a message about how serious his threats against Pelosi and AOC were.

        Instead, Cannon sentenced Hoeffer to 18 months.

        • earlofhuntingdon says:

          That would be consistent with the shared priority of protecting Trump and those who do his bidding, rather than overt coordination. Perhaps that was your point.

      • HW3 says:

        I agree that there is no reason for her to bend over beyond backward like this for tfg if not in the service of ambition but yet she is never ever ever ever going to be promoted by a D president.

    • timbo says:

      You say “clever” and I say “brazen”. This appears to be about playing with power and not the law at all, at least not the law as it was supposedly understood to be by the vast majority of legal experts in the US.

  19. Badger Robert says:

    I repeat, the point of the constitutional confrontation is not to get the documents into the hands of the claimant/appellee’s hands, its to create evidentiary objections to the evidence necessary to prosecute those people who conspired to withhold Nat Def Info.
    If it becomes necessary, the President is going to back up his AG and his DirofNatIIntel. That is especially true as the US is assisting the Ukraine with high level intelligence in a war against Russia.
    Does the 11th Circuit and the USSpCt want a confrontation with a President whose popularity is rising week by week?

  20. PeterS says:

    Perhaps the 11th Circuit will do the right thing, and do it quickly; and SCOTUS will, if necessary, back them up; and in due course Cannon will become the minor footnote in history that she deserves to be. 

    I have a hunch that crazy “first instance” rulings are not that rare, they get squashed on appeal and quickly forgotten. Just as a matter of chance, once in a lifetime a crazy first instance ruling will be about a very high-profile person. I’m not terribly interested in what motivated Cannon to rule how she did, beyond a perverse deference to an ex-president.

    Call me naive if you want to, but I prefer to be called naive than be panicking before I have to.

    • Vthestate says:

      I posted a link to an Amicus Brief with many cosigners, a gallery of GOP heavy hitters. I did not give a compelling title. So this reply to my posted link is asking for help understand the entire legal process. Will this brief make a difference? The twitter link starts with…”1/ BOOM – Former GOP officials file friend of the court brief with the 11th Circuit saying Judge Cannon got it wrong. The TOC reflects the core arguments, including that an ex-President is entitled to no greater protection under the law than any other citizen.”

      • TXphysicist says:

        The other day I saw a listicle on The Hill(.com) of “5 GOP members denouncing Trump for the Mar-A-Lago documents”. All five were former GOP office-holders.

        Every. single. GOP member up for election or re-election will not break ranks. McConnell, not up for election for 4 years, is the most brazenly outspoken; I think he said an almost negative thing about Trump a couple of times. Sorry, but quite a bit of that GOP culture has clearly infiltrated the judiciary. Current party members probably aren’t terribly burdened by trifles such as dissenting amicus briefs from former party members.

        Sorry, OT, but been wondering: Shouldn’t we expect many on the left to also resort to “extra-judicial solutions” if the rule of law undergoes total subversion in 0.5, 2, 4, or 6 years, whenever? I’ve never heard a left-wing pundit ask that! They’re all too scurred to be perceived as taking anything but the high road, or being accused of incitement from the right or center. The culture war is completely asymmetric, and anyone pretending like this isn’t already a flavor of informational civil/political warfare is behind the times. Anything to distract from the class warfare driving it all, I guess.

  21. Savage Librarian says:

    Herr Hector

    There was an old man, Herr Hector,
    preposterous in all of his flaws,
    Like a masterful kayfabe wrestler,
    he teamed up with pretenders of laws.

    He loved to force non sequiturs,
    confused genetic with generic terms,
    If he tapped some sympathetic nerves,
    they morphed into synthetic worms.

    He never could ever dare utter
    anything more than a mutter,
    Because his mind was so full of clutter,
    he lost his assails in butter.

    So he took to licking his fingers,
    as if all of them were dead ringers
    to bygone days with some swingers,
    But now they were alt-right wingers.

    There was an old man, Herr Hector,
    preposterous in all of his flaws,
    Like a masterful kayfabe wrestler,
    he teamed up with pretenders of laws.

    4/22/20, rev. 9/19/22

  22. skua says:

    Are Cannon’s actions consistent with any known fringe legal theory*, such as Unitary Executive theory?

    *Theory here not being confined to the reasonable, coherent or sustainable.

  23. Tom-1812 says:

    Judge Cannon doesn’t have to worry about the internal consistencies of her rulings. As J.D. Vance has learned, she just has to be willing to have Trump declare loudly in public that, “She kissed my ass to get her judgeship!”

    From now on that should be the first question any Republican member of Congress is asked when they sit down for an interview: “Did you kiss Trump’s ass today?” It could even become a standard greeting between GOPers, perhaps reduced to an acronym such as KHAT, standing for “Kissed his ass today”. One GOPer meets another and asks, “KHAT?” to which the other replies, “KHAT! You betcha!”

    To demonstrate real devotion to Trump, Republicans could begin using the acronym SHCT, which I’ll leave to readers’ imaginations to figure out.

    • bg says:

      I just saw this too and immediately came around here to see what others think. I agree, and touche, I think, to Dearie. I’m guessing TFG’s lawyers are not happy to see this. And of course, we already know the answer. There was no declassification because there is no evidence of classification process demonstrated. He probably knows it is provably false.

  24. earlofhuntingdon says:

    Trump’s lawyers are apparently resisting SM Dearie’s demand that they declare what steps, if any, Trump took, in an attempt to declassify documents. Presumably, that’s with regard to each document – as opposed to the usual Trumpian wave of the imperial hand. Note that Dearie’s phrasing ignores whether those actions had any legal effect.

    Trump’s team contends that Dearie’s demand would prematurely require them to disclose a potential legal defense. Is that a thing? It sounds more like taking the Fifth. If they refuse, and in the absence of evidence to the contrary, I assume that Dearie is entitled to assume that all documents with classification markings presumptively remain classified. While important, that doesn’t get around the criminal statutes that don’t require that mishandled documents be classified.

    As with all their filings in this matter, Trump’s lawyers are way over their skis. They claim that Trump could have done X, Y. and Z, but avoid declaring whether he actually did X, Y, and Z. That mirrors their steadfastly avoiding giving the court any sworn affidavits of fact. At some point, the sooner the better, they’re going to have to put up or take the consequences for not having done so.

    https://www.cnn.com/2022/09/19/politics/special-master-review-justice-department-trump-mar-a-lago-documents/index.html

    • njbr says:

      There are two audiences, the true believers that live via the words of Trump and then there is the court.

      To claim a laughable “declassification” in court immediately starts the legal rack, but for Trumpists to declare that on a public stage satisfies the stooges.

      There is no potential defense based on a “I hereby declassify” for most of the secret documents but such a defense would soon require the public disavowal of it as the BS it is.

      • TXphysicist says:

        I told a rando on twitter that Trump’s gonna be fine, because old footage has emerged of Trump swish-and-flicking a wizard’s wand at his desk and yelling “DECLASSIFERINO”, and they weren’t sure if I was lying

    • earlofhuntingdon says:

      Actually, Trump’s lawyers are trying to take two bites at Dearie’s apple. One is that what he requests is more properly done in the context of plaintiff’s 41(g) motion for return of materials “unlawfully seized” by the government during the search.

      I see that as a simple stalling tactic. For one thing, the timing of any rule 41 motion is largely up to Trump. More fundamentally, under established law, that motion should go nowhere. Trump has no apparent right, title or interest in either presidential or federal records. The claim might be relevant to the handful of privileged and personal items that Cannon has refused to allow the government to return to Trump, so as to keep the issue open for her to play with. (Something Marcy has argued at length.)

      The other is Trump’s argument that he should not be asked to disclose facts now that he wishes to reserve for his defense of as yet unspecified crimes the government might charge him with.

      That’s also a stalling tactic. Who knows when the DoJ would be ready to charge? And while the claim that he did or could have declassified documents is fundamental to Trump’s posturing – as opposed to his legal filings – it ignores the statutes whose violation the government used the search warrant to investigate, which do not rely on the mishandled documents being classified.

      Delay, of course, is Trump’s fundamental legal strategy. Here, he needs it to keep alive Cannon’s jurisdiction. Trump needs time to frame for his base his victimhood. And he needs to delay admitting that, in all likelihood, he did fuck all to declassify anything, other than perhaps to waive his tiny hands.

      • earlofhuntingdon says:

        A pint of delay, with a snark chaser: “[T]o assure this Court that the parties are operating with appropriate urgency,” Jim Trusty asks Dearie to push back his deadlines two weeks, starting with tomorrow’s status conference.

        Apart from buying time to do stuff team Trump can’t seen to do with any amount of time, it would jam Dearie’s work toward the end of Cannon’s November 30th deadline, assuring Cannon a reason to delay that deadline, too.

        • L. Eslinger says:

          “Hey, let’s talk about this tomorrow. G’night, Judge,” doesn’t sound like something that will placate Judge Dearie.

          Much has been made of Judge Dearie’s potential disaffection with the FBI, but I’d be willing to bet my modest collection of miscellaneous used machine screws and nuts that the judge appreciates and respects the national security needs of the government, and so won’t be satisfied by Trump’s theory of absolute and unending authority. This is a WAG, not a conclusion based upon any factual information.

          • earlofhuntingdon says:

            Needless to say, a Rule 41 motion should be heard by Judge Reinhart, not in a civil action before Judge Cannon. Reinhart issued the search warrant and should decide challenges to its legality and execution.

            Rule 41 is the rule deals with Trump’s claim that the government unlawfully seized and wrongfully maintains material that is the property of Donald Trump. But determining that early is not in Trump’s interest. He would rather litigate it until he resumes the presidency.

          • punaise says:

            hat tip for “ but I’d be willing to bet my modest collection of miscellaneous used machine screws and nuts”

            I mean, who doesn’t have old Folgers cans full of this stuff?

  25. TXphysicist says:

    bmaz, Earl, everyone; Please tell me I’m crazy.

    What’re the odds that some of Cannon’s, erm, “boldness” stems from ongoing negotiations through Federalist Society (or other) backchannels probing whether SCOTUS is willing to go so far as to side with Cannon, should the 11th circuit not strike this down?

    I know how conspiratorial that sounds, but I think none of us thought we’d ever get to this point.

    A large amount of backchannel coaching may also explain some of the disjointedness of the logic and language in Cannon’s decisions.

    Part of me hopes DoJ has put Cannon under surveillance, but I doubt there’s enough probable cause for it, and I know what a slippery slope that can be.

    Trump’s now-naked embrace of Q-anon betrays his intention to use extra-judicial violence, and soon, if necessary. Since I’m a hardcore masochist, I watch most Trump rallies, and I heard the Q-music for the final part of his act a few weeks ago, in PA, but I’ve never seen the new Q-salute in OH two days ago. And his Q-anon postings on Truth Social only just started up a couple weeks ago. Trump is now deliberately activating the most extremist, violent sub-currents in Trumpism.

    “And wouldn’t it be a shame, Slick Sammy, little Sammy Alito, I call him, a real shame if some of these, these lovely people, but very angry, because they know where you work!! They would be even angrier, unless, and you should, unless you help everybody out, right folks?”

    • MB says:

      You think the QAnon population would be more violent and more organized than Proud Boys, Oath Keepers, 3 %-ers etc? Definitely more crazy. The Pizzagate shooter was inspired by QAnon, but (fortunately) acted alone.

      (Now my paranoia is creeping in): or maybe Mike Flynn has been running boot camps for these people on the QT?

      • TXphysicist says:

        I think there’s more overlap between Q-anon and extremist militia groups than is commonly understood. They were certainly shoulder-to-shoulder on J6. But yes, I agree, the Q-anon’ers are more stochastic (less organized), but that makes it much more difficult to track and disrupt them for law enforcement, especially over encrypted networks like Telegram and Signal. There are only two people they take info/orders from: “Q”, and Trump. Virtually no middle managers like Flynn. And nah, I doubt Flynn is running physical boot camps in secret. The boot camps are online, and produce incidents like the guy who was under the impression that a nail gun would break bullet-proof glass at the FBI field office in Cincinnati.

        Trump will become more explicit with his directions over the next few months and years. I think one key problem is Trump’s his ability to mobilize even just a few die-hard (literally ready to die) supporters is almost instantaneous compared to DHS’s or FBI’s etc. ability to mobilize personnel to deploy in between a converging mob and e.g. a prosecutor, a jurist, a pol, or a judge. Another key problem is that Devin Nunes, CEO of Truth Social, is definitely NOT going to remove Trump’s account after one single explicit or quasi-explicit call to violence that results in Bad Things.

        If only 0.1% of America decides to heed Trump’s calls to violence, that’s still 330,000 people. I’m worried it’s quite a bit more than 0.1%.

        Dark times.

        • MB says:

          There’s a parallel thread going on above – see the post from Thomas 9/20/22 at 12:21 a.m. He seems to think there might be 100,000 (as opposed to your estimate of 330,000) and that they would be spread across 20 states, so an average of 5,000 in each of these 20 states.

          Don’t know whether either one of your statistical projections are realistic or not. What were the numbers on 1/6? 40,000 in the crowd and 2,000 who stormed the building?

          Whole lotta pot-stirring going on these days…

    • SMF88011 says:

      I pointed out the other day that the new Q-anon Salute is the same one that was used by ISIS. Isn’t it interesting how quickly these things are coming around?

  26. hollywood says:

    Something about this entire business reminds me of Judge Matt Byrne’s ill-fated meeting with Ehrlichman. The odor is familiar.

  27. JohnJ says:

    If I missed this in earlier comments, I apologize.
    Just saw headline:
    BREAKING: Special Master in Trump Mar-A-Lago Case OPENS HEARING TO PUBLIC…

    There is a call in number to listen tomorrow.

    In my barely informed opinion, you do that if you want to say something and don’t want to give the propagandists any wiggle room. I suspect fireworks tomorrow?

  28. obsessed says:

    The talking feds are vert excited about this new NYT scoop with “3 people familiar with the situation” reporting that Eric Herschmann made explicitly clear to Trump the legalities of not returning the classified docs.

    1. Do the experts here agree?

    2. Applying Wheeler’s Razor, why do we think the “3 people” chose to share this with Maggie now? Is it something Trump’s team needs to know before tomorrow?

    • obsessed says:

      So it seems the 3 people are Herschmann and two others.

      Ah!! I didn’t realize Herschmann was one of the three. The plot thickens.

    • Belyn says:

      Might this have come out in EH’s grand jury testimony and he leaked.it?
      My guess would be that he wants to be out in front of this so he can cut a deal first.
      He warned against taking the docs, meaning he knew they were taken.

      Hirschmann was discussed on a segment of The Last Word last night, with speculation that this could truly cook trump’s goose.

      • timbo says:

        Wasn’t there some leak about there being no recovered PRA records for Twitler’s Presidency from Nov 2020- Jan 2021 in the trove retrieved during the August seizure at Mar-a-Lago? I ask because it seems to me that there’s more leaks about things that seem to revolve strongly around that period, things like this leak about Herschmann’s alleged statements to the grand jury.

  29. Teri says:

    I don’t believe that “Our client tells us he declassified it all,” wouldn’t actually work as evidence to counter the prima facie case made by the government because it’s still out of court hearsay, and I don’t see it coming in as an exception, particularly because the judge asked for specific information regarding classification.

    As you said, this is particularly true because his lawyers are not in a position to know.

    P.S. Your work is consistently excellent. Thanks.

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