Granting Stay, 11th Circuit Scolds Aileen Cannon for Ignoring Executive Assertions on National Security

On the same day that NY Attorney General Tish James announced a lawsuit against Trump for his alleged tax cheating and financial fraud, the 11th Circuit granted DOJ a stay of Aileen Cannon’s injunction prohibiting it from using the documents marked as classified in its investigation. But Trump got to go blow smoke to Sean Hannity, so I guess all is not lost.

The opinion was a per curiam opinion written by Trump appointees Britt Grant and Andrew Brasher and Obama appointee Robin Rosenbaum.

Courts don’t question the [current] Executive’s representations about national security

While reserving judgment on the merits question, the opinion was nevertheless fairly scathing about Cannon’s abuse of discretion. Some of this pertained to her jurisdictional analysis (which I’ll return to). But two important implicit admonishments of Cannon’s actions pertain to the deference on national security that courts give to the Executive.

The opinion calls the scheme that Cannon had set up — allowing the Intelligence Community to continue its intelligence assessment but prohibiting any investigation for criminal purposes — untenable. In support, the opinion notes that there’s a sworn declaration from FBI Assistant Director Alan Kohler (the only one in this docket) debunking Cannon’s distinction between national security review and criminal investigation. It notes, twice, that courts must accord great weight to the Executive, including an affidavit. The opinion notes that “no party had offered anything beyond speculation” to undermine this representation.

Returning to the case before us, under the terms of the district court’s injunction, the Office of the Director of National Intelligence is permitted to continue its “classification review and/or intelligence assessment” to assess “the potential risk to national security that would result from disclosure of the seized materials.” Doc. No. 64 at 1–2, 6. But the United States is enjoined “from further review and use of any of the materials seized from Plaintiff’s residence on August 8, 2022, for criminal investigative purposes pending resolution of the special master’s review process.” Id. 23–24.

This distinction is untenable. Through Kohler’s declaration, the United States has sufficiently explained how and why its national-security review is inextricably intertwined with its criminal investigation. When matters of national security are involved, we “must accord substantial weight to an agency’s affidavit.” See Broward Bulldog, Inc. v. U.S. Dep’t of Justice, 939 F.3d 1164, 1182 (11th Cir. 2019) (quoting Am. Civil Liberties Union v. U.S. Dep’t of Def., 628 F.3d 612, 619 (D.C. Cir. 2011)).

The engrained principle that “courts must exercise the traditional reluctance to intrude upon the authority of the Executive in military and national security affairs” guides our review of the United States’s proffered national-security concerns. United States v. Zubaydah, 142 S. Ct. 959, 967 (2022) (alteration and citation omitted). No party has offered anything beyond speculation to undermine the United States’s representation—supported by sworn testimony—that findings from the criminal investigation may be critical to its national-security review. See Kohler Decl. ¶ 9. According to the United States, the criminal investigation will seek to determine, among other things, the identity of anyone who accessed the classified materials; whether any particular classified materials were compromised; and whether additional classified materials may be unaccounted for. As Plaintiff acknowledges, backwards-looking inquiries are the domain of the criminal investigators. Doc. No. 84 at 15–16. It would be difficult, if not impossible, for the United States to answer these critical questions if its criminal investigators are not permitted to review the seized classified materials. [my emphasis]

Two parties — both Trump and Cannon — did speculate wildly that Kohler’s representations were overblown. Which you can’t do in courts of law, the 11th Circuit says. The more important point was that Cannon totally dismissed the Kohler declaration (even while she didn’t require declarations of others) to sustain her own “untenable” injunction.

The opinion lays out at length how classification works, citing sources Trump also relied on (largely EO 13526 and Navy v. Egan) to effectively show the parts of those citations he ignored. In one such passage, it comes pretty close to suggesting all this should be obvious, even to Aileen Cannon.

The United States also argues that allowing the special master and Plaintiff’s counsel to examine the classified records would separately impose irreparable harm. We agree. The Supreme Court has recognized that for reasons “too obvious to call for enlarged discussion, the protection of classified information must be committed to the broad discretion of the agency responsible, and this must include broad discretion to determine who may have access to it.” Egan, 484 U.S. at 529 (quotation omitted). As a result, courts should order review of such materials in only the most extraordinary circumstances. The record does not allow for the conclusion that this is such a circumstance. [my emphasis]

The way courts have expansively interpreted Navy v. Egan to grant the [current] Executive nearly unfettered authority to dictate matters of classification invites abuse (and screws over defendants in Espionage Act cases). But that is what courts have done. That is what precedent demands. And Cannon’s blithe deviation from that precedent deserved this kind of disdain.

Joe Biden gets to decide Trump doesn’t have a Need to Know

In another section, the opinion makes a finding that goes beyond where the dispute before Cannon has gone (but not beyond where the dispute before Special Master Raymond Dearie has). Even former Presidents can only access classified information if they have a Need to Know.

[W]e cannot discern why Plaintiff would have an individual interest in or need for any of the one-hundred documents with classification markings. Classified documents are marked to show they are classified, for instance, with their classification level. Classified National Security Information, Exec. Order No. 13,526, § 1.6, 3 C.F.R. 298, 301 (2009 Comp.), reprinted in 50 U.S.C. § 3161 app. at 290–301. They are “owned by, produced by or for, or . . . under the control of the United States Government.” Id. § 1.1. And they include information the “unauthorized disclosure [of which] could reasonably be expected to cause identifiable or describable damage to the national security.” Id. § 1.4. For this reason, a person may have access to classified information only if, among other requirements, he “has a need-to-know the information.” Id. § 4.1(a)(3). This requirement pertains equally to former Presidents, unless the current administration, in its discretion, chooses to waive that requirement. Id. § 4.4(3).

Plaintiff has not even attempted to show that he has a need to know the information contained in the classified documents. Nor has he established that the current administration has waived that requirement for these documents. And even if he had, that, in and of itself, would not explain why Plaintiff has an individual interest in the classified documents. [my emphasis]

Trump has tried to claim that because the Presidential Records Act grants him access to his own former official papers, it means he has possessory interest over the classified documents seized from his home. This passage should end that debate, including the complaint Jim Trusty made in Dearie’s court the other day that the President’s lawyers (from the coverage I’ve seen, he didn’t say former) do not have a Need to Know the material in the documents Trump stole. Without DOJ needing to appeal this issue, the 11th Circuit has already sided with Dearie. As I showed here, the fact that even the former President can only access classified information with a Need to Know waiver is laid out explicitly in EO 13526, the Obama EO that (Trump has repeatedly conceded) governed classified information during Trump’s entire Administration and still governs it.

That should settle this issue.

Cannon should never have intervened

Now that I’ve slept some more, I wanted to return to what the 11th Circuit had to say about Judge Cannon’s jurisdictional acrobatics to even rule on Trump’s case.

The summary of this case is a really remarkable description of what has already happened (I’m sure it helped the clerks on that front that they had no page limits). Ominously for Trump’s case, the opinion starts the narrative from the time he left the White House and lays out several moments where Trump failed to invoke privilege or declassification. Trump likes to tell the story starting on August 8 when the FBI arrived at his house out of the blue.

But the opinion is particularly scathing in their description of jurisdiction. It describes that Trump invoked, among other things, equitable jurisdiction.

Regarding jurisdiction, among other bases, Plaintiff asserted that the district court could appoint a special master under its “supervisory authority” and its “inherent power” and could enjoin the government’s review under its “equitable jurisdiction.” Doc. No. 28 at 5–6.

In Trump’s reply to DOJ’s argument that he couldn’t own these documents, the opinion notes, he specifically disclaimed having filed a Rule 41(g), which is where someone moves to demand property unlawfully seized be returned.

Plaintiff appears to view appointment of a special master as a predicate to filing a motion under Rule 41(g) (which allows a person to seek return of seized items), he disclaimed reliance on that Rule for the time being, saying that he “h[ad] not yet filed a Rule 41(g) motion, and [so] the standard for relief under that rule [wa]s not relevant to the issue of whether the Court should appoint a Special Master.” Doc. No. 58 at 6.

Cannon, the opinion notes, claimed to be asserting jurisdiction under equitable jurisdiction even while treating Trump’s request (in which he had not made a Rule 41(g) motion) as a hybrid request.

As to jurisdiction, the district court first concluded that it enjoyed equitable jurisdiction because Plaintiff had sought the return of his property under Rule 41(g), which created a suit in equity.1 Because its jurisdiction was equitable, the district court explained, it turned to the Richey factors to decide whether to exercise equitable jurisdiction.2

Half that page of the opinion consists of footnotes, recording that Trump’s claims about Rule 41(g) have been all over the map.

1 As we have noted, Plaintiff disclaimed having already filed a Rule 41(g) motion in his initial reply to the government. Doc. No. 58 at 6. Yet in the same filing, Plaintiff stated that he “intends” to assert that records were seized in violation of the Fourth Amendment and the Presidential Records Act and are “thus subject to return” under Rule 41(g). Id. at 8; see also id. at 18 (“Rule 41 exists for a reason, and the Movant respectfully asks that this Court ensure enough fairness and transparency, even if accompanied by sealing orders, to allow Movant to legitimately and fulsomely investigate and pursue relief under that Rule.”). The district court resolved this situation by classifying Plaintiff’s initial filing as a “hybrid motion” that seeks “ultimately the return of the seized property under Rule 41(g).” Doc. No. 64 at 6–7

2 Richey v. Smith, 515 F.2d 1239, 1243–44 (5th Cir. 1975) (outlining the standard for entertaining a pre-indictment motion for the return of property under Rule 41(g)). Because the Fifth Circuit issued this decision before the close of business on September 30, 1981, it is binding precedent in the Eleventh Circuit. See Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc).

In reviewing Trump’s response to the government’s motion for a stay, the opinion notes that Trump claims to have Rule 41(g) standing — with respect to the classified documents.

As the opinion laid out, in denying the stay, Cannon relied on claimed uncertainty around the status of the classified documents to find for Trump.

On September 15, the district court denied a stay pending appeal and appointed a special master. Doc. No. 89. In explaining the basis for its decision, the district court first reasoned that it was not prepared to accept, without further review by a special master, that “approximately 100 documents isolated by the Government . . . [were] classified government records.” Doc. No. 89 at 3. Second, the district court declined to accept the United States’s argument that it was impossible that Plaintiff could assert a privilege for some of the documents bearing classification markings. Doc. No. 89 at 3–4

The opinion doesn’t come to any conclusions about all this nonsense from a jurisdictional position. It doesn’t have to. But it did capture conflicting claims that Trump made and Cannon’s reliance on a “hybrid” claim to avoid pinning Trump down.

The reason the 11th Circuit didn’t have to resolve all this is because, regardless of which basis Cannon claimed to have intervened, Richey governs (which is exactly what Jay Bratt said in the hearing before Cannon, as I laid out here).

Our binding precedent states that when a person seeks return of seized property in pre-indictment cases, those actions “are governed by equitable principles, whether viewed as based on [Federal Rule of Criminal Procedure] 41[(g)] or on the general equitable jurisdiction of the federal courts.” Richey v. Smith, 515 F.2d 1239, 1243 (5th Cir. 1975). Here, while Plaintiff disclaimed that his motion was for return of property as specified in Rule 41(g), he asserted that equitable jurisdiction existed. And the district court relied on both Rule 41(g) and equitable jurisdiction in its orders. Doc. No. 64 at 8–12. Either way, Richey teaches that equitable principles control.

And the first prong of Richey — and the most important one — is whether there has been a Fourth Amendment violation. Cannon says there has not. That should be game over.

We begin, as the district court did, with “callous disregard,” which is the “foremost consideration” in determining whether a court should exercise its equitable jurisdiction. United States v. Chapman, 559 F.2d 402, 406 (5th Cir. 1977). Indeed, our precedent emphasizes the “indispensability of an accurate allegation of callous disregard.” Id. (alteration accepted and quotation omitted).

Here, the district court concluded that Plaintiff did not show that the United States acted in callous disregard of his constitutional rights. Doc. No. 64 at 9. No party contests the district court’s finding in this regard. The absence of this “indispensab[le]” factor in the Richey analysis is reason enough to conclude that the district court abused its discretion in exercising equitable jurisdiction here. Chapman, 559 F.2d at 406. But for the sake of completeness, we consider the remaining factors. [my emphasis]

Because the opinion continued this analysis, this determination: that Cannon never had the authority to intervene in the first place, is not the most important part of the 11th Circuit’s grant of a stay. But it would be important going forward on the appeal (and may influence how broadly DOJ appeals Cannon’s decision).

Later in the opinion, the 11th Circuit noted that Cannon had also suggested she might be invoking jurisdiction under “inherent supervisory authority,” though it couldn’t really tell. It then mocked the possibility she could exercise inherent authority over classified documents.

The district court referred fleetingly to invoking its “inherent supervisory authority,” though it is unclear whether it utilized this authority with respect to the orders at issue in this appeal. Doc. No. 64 at 1, 7 n.8. Either way, the court’s exercise of its inherent authority is subject to two limits: (1) it “must be a reasonable response to the problems and needs confronting the court’s fair administration of justice,” and (2) it “cannot be contrary to any express grant of or limitation on the district court’s power contained in a rule or statute.” Dietz v. Bouldin, 136 S. Ct. 1885, 1892 (2016) (quotation omitted). The district court did not explain why the exercise of its inherent authority concerning the documents with classified markings would fall within these bounds, other than its reliance on its Richey-factor analysis. We have already explained why that analysis was in error.

The 11th Circuit has not just said that DOJ has cause for a stay, but it has said that Cannon should never have intervened in the first place.

Richey within Nken

Because of what I just laid out — that the 11th Circuit decided that Cannon should never have intervened, but then went onto consider a bunch of other issues — and because I laid out the structure of both sides’ arguments in this post, I want to lay out the structure of the 11th Circuit’s analysis here. It nests the likelihood of DOJ’s success, using Richey analysis, inside their overall analysis of whether to grant the stay under Nken.

The four Nken factors are:

(1) whether the stay applicant has made a strong showing that he is likely to succeed on the merits;

(2) whether the applicant will be irreparably injured absent a stay;

(3) whether issuance of the stay will substantially injure the other parties interested in the proceeding; and

(4) where the public interest lies.

The four very similar Richey factors are:

(1) whether the government has “displayed a callous disregard for the constitutional rights” of the subject of the search;

(2) whether the plaintiff has an individual interest in and need for the material whose return he seeks

(3) whether the plaintiff would be irreparably injured by denial of the return of his property; and

(4) whether the plaintiff has an adequate remedy at law for the redress of his grievance.

Here’s how it looked in practice:

  • Is DOJ likely to succeed on the merits?
    • Was Cannon’s Richey analysis correct?
      1. Is there any claim of callous disregard for Trump’s rights? No. Cannon said so.
      2. Does Trump have an individual interest in this material?
        • Cannon’s analysis applies to “medical documents, correspondence related to taxes, and accounting information,” not to classified documents.
        • There would be no individual interest in classified documents and Trump has no Need to Know these documents.
        • Trump has provided no proof he declassified any of these documents and even if he had, it would not change its content or make it a personal document.
      3. Would Trump be irreparably harmed? Cannon said it might be improperly disclosed, it might include privileged material, and he might be prosecuted.
        • USG limits dissemination of classified documents to limit unauthorized dissemination, not to leak them.
        • Trump has not asserted privilege over any of the classified documents.
        • Except in cases of harassment, courts don’t intervene in criminal prosecutions
      4. Does Trump have another remedy?
        • Cannon said that he would have no legal means of seeking return of his property, but then also acknowledged that he hadn’t used the means, a Rule 41(g) motion, that he would take to get return of his property.
  • Would the US suffer irreparable harm?
    1. Cannon’s injunction is untenable. Kohler has explained that the criminal investigation is inextricably intertwined with the national security review. The government needs to be able to do a backward looking review of what happened with the documents.
    2. DOJ says sharing the documents with the Special Master and Trump’s counsel would impose irreparable harm, and under Navy v. Egan, we agree.
  • Has Trump shown he’ll be injured?
    1. Trump neither owns nor has a personal interest in these classified documents.
    2. “Bearing the discomfiture and cost of a prosecution for crime even by an innocent person is one of the painful obligations of citizenship.”
    3. The government’s use of these documents that don’t include privileged information would not risk disclosure of privileged information.
  • What about public interest?
    • According to the classification system, investigating the disclosure of documents marked Top Secret by definition involves investigating whether something that could cause “exceptionally grave damage to national security” was disclosed. So a stay is in the public interest.

One reason I laid this structure out is because, in the filings before the 11th Circuit, the various harms were muddled. Trump even argued (because DOJ treated them in tandem, I think) that the government had merged DOJ and public interest. Trump (and Cannon) had effectively tied the harm of Trump to the harm of the public.

As this makes it clear, Trump’s harm is assessed at both levels of analysis. Though the 11th Circuit’s Richey analysis says that once you’ve found Trump’s rights were not harmed (in blue above), you need go no further. But on the Nken analysis, the question is whether the government would be irreparably harmed (in red above). And there, once you accept the US system of classification, in which the disclosure of things that are classified Top Secret by definition would cause exceptionally grave harm, then there’s no contest.

Update: Judge Cannon has removed the classified documents from those included in the seized materials covered by her order.

Go to emptywheel resource page on Trump Espionage Investigation.

172 replies
  1. benfdc says:

    Note the DO NOT PUBLISH directive on the first page of the order. Like the issuance of the order per curiam, this signals that the order is unremarkable, a simple application of existing precedent, such that no subsequent court or litigant would ever have need to cite it.

  2. timbo says:

    Thanks, once again, for presenting your timely analysis in such detail! It’s been a better day today in court for DOJ…and hopefully the country in general. Frankly, I was stoked to see today’s grant of partial stay. Cannon seem to be taking a radical tact that was fairly scary in its implications; cooler heads seem to have prevailed for the moment on this one important issue.

  3. JonW says:

    Dr Wheeler, good morning from Paris! I’m curious to hear your opinion on how this reflects on the DOJ strategy going forward. One thing I (in my amateur way) was confused about was why DOJ only sought a stay for just the classified docs (confusion which you helped lessen in your posts about this case). Seeing this result, and how seemingly simple it was for the 11th Circuit to get here, should they have appealed more broadly? Or is it the case that a broader appeal may have muddied the waters and potentially been fully denied?

    One related question is this: is it fair to assume that the other pile of seized documents (not the classified ones) are of significantly lower investigative interested to DOJ? If I understand correctly, those thousands of docs are still off limits to DOJ for pursuing a criminal investigation, and the SM must still clear them. Can this still gum up the investigation? Or is it more like DOJ thinking “let’s let Trump spend money on having a senior judge filter through his thousands of press clippings and keep his counsel tied up in that process”? Presumably there could be some non-classified presidential records that help the investigation somehow (here I should obviously disclaim that in addition to not being a lawyer, I’m even less of an investigator).

    • Lika2know says:

      I think that the DoJ/FBI/IC don’t really care about the other documents (beyond the 100), and finds it a great irony that Trump will have to pay for their SM review. And, by keeping their scope so focused, the challenge to the stay was much easier to argue. Smart approach with a little touch of snipe hunting thrown in.

      • taluslope says:

        Apparently they care about _some_ other documents. MSNBC reported that the FBI (I presume) had forwarded tax documents to the IRS showing that Trump wasn’t entirely truthful in his tax returns.

        • Callender says:

          On the contrary I suspect some, if not many of the 11,000 or so documents under the SM’s purview might fall into “national defense information,” which would mean trump’s taking of them violated the law.
          The question is what will Dearie do when he runs into them – that is if he isn’t fired first.

      • Steve in MA says:

        I think it’s not that they are do not care about the non-classified documents, but rather that there is urgency to examine and further investigate the classified ones. Who handled these? Were any compromised, copied, or shown to individuals lacking the appropriate security clearance, did any foreign actors have access? The non-classified stuff can be dealt with on appeal without the time pressure and danger posed by classified documents leaking to unauthorized individuals. And examining the classified docs for such access necessarily involves a criminal investigation.

        Oops should have read further down to Jeffrey G’s comment which has similar info.

    • blueedredcounty says:

      DOJ kept it simple because this was not the appeal. This was a request for a stay (hold) on part of the District Court’s order, pending appeal.

      The appeal is still being prepared. Expect it to be longer.

    • emptywheel says:

      As blue noted, this was just the stay pending appeal. They will eventually appeal the larger decision. I’m fairly confident they’ll also appeal the Exec Privilege designation process, and given this, the basis on which Cannon assumed authority for this, muddling several reasons.

      But they also can allow Dearie to check their work and find that they were truthful.

      • Rugger9 says:

        It also may have been the easiest part of the case to appeal, as laid out quite well in the post. The DoJ had the law and precedent firmly on its side here.

        This outcome (pending SCOTUS intervention) also means it’s going to be much harder for Individual-1 to dodge consequences for mishandling NDI, and 18 CFR 793. I have no doubt TFG’s lawyers are drafting their appeal to SCOTUS and as I noted in an earlier thread it’s quite possible certiorari will be granted. ACB, Kavanaugh, Thomas and Alito will probably all go for it and four votes is all that is needed to put the case on the docket. I also don’t think it will get support from Roberts or Gorsuch given their past decisions involving court process, but for Individual-1 the delay is the point.

        • Rugger9 says:

          I don’t know if a stay of the 11CA order pending SCOTUS arguments and subsequent decision requires a vote of all SCOTUS justices or Thomas as overseer of 11CA can issue it on his own.

          If Thomas can, he will regardless of his conflict with Ginni being summoned by the J6SC and testifying there. His GAS factor is pretty much zero.

        • Drew says:

          IANAL but *CAN* Trump file an appeal to SCOTUS at this point? The stay is while the 11th circuit hears the appeal, it’s not on the merits. So the appeal would be to stay the stay of the stay of the investigation. While there’s not anything I could put past Thomas, I’m not convinced that any of the judges that ruled against Trump on his executive privilege claims against NARA would agree to stay this order regarding national security/classified documents by a panel with of two Trump appointed judges in the 11th circuit–generally speaking it’s in line with conservative national security law & policy–as much as they might want to favor Trump with delay in other cases.

          • timbo says:

            My understanding is that plaintiff Trump could do this. However, why would SCOTUS be interested in doing more than simply affirming the partial stay order as the 5th Circuit appeals panel just did? As others have pointed out, this case, going through all these documents, by the plaintiff side is going to be burdensome (although they asked for it so guess they got it) already so what’s the point of filing against this partial stay, particularly when they’ve been unwilling to be specific in their objections to the government having a right to marked documents?

      • Charles R. Conway says:

        Meanwhile, are the Circuit Courts of Appeal judges immune from mob responses? How long until true-believers dox this Panel and show up? The Federal Marshall’s office in Atlanta should be on their toes.

    • Faithdc says:

      Everything seized is potential evidence. The emergency stay of Cannon’s ruling concerning the classified documents was the potential irreparable harm to national security that her loony order imposed. Even some of the personal items have context as to how classified documents were improperly stored, like the passports on top of classified documents in Trump’s desk. Although returned to him, I’m sure a photo will suffice to prove intent and knowledge. There is no imminent emergency about the unclassified documents, but their evidentiary value is still very important. The quickest path to not further impeding the criminal investigation was to let the Special Master look for attorney-client privilege documents that cannot be used in the criminal investigation. (However, I’m still not sure how and when the crime-fraud exemption kicks in.) As far as “executive privilege,” Trump has none. Period.

      • timbo says:

        It is not clear that there is no imminent threat or no pattern of threat in the other documents. Some of the documents seized might cover such things as the Jan 6 plot and contain info relative to plotters. We must not forget that this is an odd time and place for these documents to be in limbo considering a rogue ex-President and hangers-ons.

    • LadyHawke says:

      In light of Trump’s White House’s sloppy keeping of entry logs and schedules, made even worse at the end when mid-level people were leaving and relevant positions were empty, won’t the Archives at some point have a legitimate interest in any materials that fill in gaps?
      And, of course, if those gaps were deliberately left, and of potential criminal interest? So much sketchy business that we’ll never know about.

      • timbo says:

        My guess is that the ineptness of Team Trump in its twilight in the WH will eventually be even more apparent than it already is. That is, if there was any attempt to cover tracks, it will eventually be found to have failed. Trump and many of the people around him are basically lazy and haphazard when it comes to many of initiatives they have undertaken. They’ve only managed to get away with a lot of this so far because the GOP seems tied to Trump politically. If not for that, Trump’s goose would already have been cooked in all likelihood.

  4. Jeffrey Gallup says:

    As the appeals court touched on, the content of the 100 classified documents (and the earlier recovered classified documents, in Trump’s custody for a year or more) is crucial both to the damage assessment of the potential compromise of the documents and to the criminal investigation. And not only because the two or intertwined.

    A proper damage assessment will necessarily involve the FBI’s determining whether unauthorized persons had or even possibly had access to the documents. This may require interviewing lots of people who were at Mar A Lago to find out whether they were allowed to see (or copy or take) the classified material. For example, if friend of Trump X revealed that Trump had shown his friends a document detailing M. Macron’s sex life, and they all had a good laugh, the FBI would need to verify that a document with such content had been at Mar A Lago.

    The FBI and other agencies would need to look at the documents to see whether human or technical sources might be compromised, and whether they needed to take action to protect the human sources or stop technical collection.

    A sudden loss of human sources through disappearance, silence, arrest, or death could be powerful evidence that they had been compromised by a leak of classified information. (See: Robert Hanssen, Aldrich Ames.) Similarly, the loss of technical collection might indicate compromise.

    The intelligence community would also be scouring all its intelligence to see whether there was any foreign state chatter about information contained in the classified documents.

    A lot of this damage assessment and any corrective action would need to be taken very quickly if human sources or technical means were in jeopardy.

    • BobCon says:

      I think we don’t know very well what the uses of the documents are from a damage control perspective, and some may well be more about an endpoint than a starting point.

      In some cases there may be good evidence that Trump did a lot of damage to sources in a foreign capital by talking to someone first, and the existence of a memo sitting in a box is only one more piece of evidence that he was interested in the issue on top of a lot more they may already have from overseas intercepts.

      The man is a massive security risk based on just the information in his head. At least some of these documents may be more important as a sign of his state of mind, his interests and the subjects he may leak about than in the information on the page itself.

      There would still be an urgent need to get these documents under control, but I think it’s a much bigger, messier problem than just what is on this paper.

      • Troutwaxer says:

        “At least some of these documents may be more important as a sign of his state of mind, his interests and the subjects…”

        Or the interests and subjects Putin is interested in.

        • Rayne says:

          We really need to widen our perception as to the interested parties — especially the same week Trump’s buddy Tom Barrack goes to trial about his unregistered work on behalf of UAE.

          • Troutwaxer says:

            Thinks about it for a second… and completely agrees with you. And note that the same intelligence can be sold to multiple parties, (or someone could pay more for an exclusive.)

            Maybe “exclusives” are what the empty jackets are about. This is pure speculation, but maybe Trump says something like, “I’ve valued this classified paper at eight million a copy, or you can have the original for twenty-three million.”

          • Scott Rose says:

            Likewise, the potential monetary sale value of any given classified document is not necessarily Trump’s only potential interest in that classified document.

            Trump could, for instance, also value certain documents for the opportunities they present for him to attempt to blackmail others into doing his bidding.

            After all, when Trump illegally solicited covert propaganda from Zelensky, he was not after money.

    • ExpatR&RDino-sour says:

      This poor man. If it wasn’t for the fact that he’s done so many egregious things, fired up the craziest amongst us to believe he is their messiah and stirred them to the point that it is endangering democracy, it’s led me to conclude that he is one of only two people in my life (the other a criminal builder who ran off with my life savings) that I think he must pay for his crimes by being imprisoned…. I’d feel sorry for him. But I don’t.

      • Ruthie says:

        A few months ago, when my 90 yo mother was just hours from death, she couldn’t refrain from cursing Biden when asked to demonstrate her mental competence by naming the current president. After she did, in fact, die, a sibling deep in the cult (unfortunately I have several) called me; on the slightest possible pretext, she angrily told me that Trump had won before literally hanging up.

        I’m at a loss as to how to respond, both within my family and within society at large. I certainly don’t feel pity for the cretin whose example encourages such disdain for control of your worst impulses.

            • Ruthie says:

              Thanks to both you and harpie.

              I have a very large family, and decades of experience in maintaining a polite distance from the crazies, skimming along the surface at family gatherings. I just found that particular experience a perfect distillation of what Trump hath wrought.

              • Commentmonger says:

                It is important to remember that Trump didn’t “cause” anything. He is only an avatar for what they have always believed. Now you know who they really are.

                • Yorkville Kangaroo says:

                  Whilst you are correct about The Donald not ‘causing’ all this he is also just as responsible for the use of it. Don’t ever give this dude a free pass.

            • ScorpioJones, III says:

              Ruthie…It may be some small consolation that I am in a very similar situation with some of my extended family. The pandemic forced a break with regular contact, no holiday gatherings, etc. Now even the most rabid anti-Biden (and by extension, pro Trump) seemed to have calmed down significantly and moved on to more reality-based conversations. I ran into one of my cousins-in-law in the grocery store a couple days ago, we grinned at each other and hugged. Around our masks.

        • FiestyBlueBird says:

          Condolences to you, Ruthie. I don’t have any wisdom on this problem, either. Turning the other cheek isn’t easy. Family sharpens the pain.

          This doesn’t address the family issue, but:

          Lou Reed in an interview was asked why he’d not responded to a certain critic of, I think, his concept album Berlin. He just sat there for several seconds staring straight ahead.

          Finally he answered, “I can’t argue with an idiot.”

          Long pause with more silent staring, no interruption from host.

          Finally Lou again, “It’s like talking to a squirrel.”

          That ended that thread of the interview.

          Today I’m thankful we have a court system that can prevail in argument with the idiocy of the criminally inclined.

        • Doctor My Eyes says:

          I’ll add my condolences. My personal feeling is that it is always a mistake to break off relationships because of politics, presuming the hypnotized people are good at heart. The basic underlying purpose of the Russian project is to turn us against one another. We may disagree, but we can also drop our end of the rope so long as there are no practical consequences to people’s beliefs beyond voting. Easier said than done. I do what I can along those lines, not always well.

          A guy who bought my house became a friend. A couple of years ago, his wife went down the rabbit hole. It ended his 30-year marriage. Nothing he said would reach her. The damage from all this lying is very real.

        • RacerX says:

          Condolences, Ruthie, and also sympathy for your (and my, and, I’m sure, many other) family situation(s). I’m sorry to say we’ve lost two progressives from our family over the last few years, so the ratio has skewed to a MAGAjority :( . It’s so very hard to have to cope with the ignorance, hate, and magical thinking espoused by our loved ones. Perhaps if the rubber of the legal process continues to gain traction, they’ll be forced to see the light. Not likely, though…

        • pablointhegazebo says:

          Ruthie, I’ve been through more than my share of grief counseling and learned that there is one thing you can take away in situations like this – know that you are not alone. I am with you, I understand and feel it too, there are many of us in the same boat.

        • Tim L. says:

          There is one thing I would suggest can be done to combat and minimize the power of the crazies, and that would be to offer an alternative. The rise of the radical right is directly related to the political vacuum created when Democrats abandoned their traditional working class constituency in favor of triangulation and corporatism, resulting in the massive economic inequality we now face. Why has Biden’s approval rating started rising lately? Because he’s finally started to do things that people actually want. There are literally dozens of policy prescriptions a large majority of Americans want – from climate, taxes, defense spending, healthcare, etc. etc. – that the plutocrats continually manage to thwart their tight grip on both parties. And Dems use the filibuster, the parliamentarian and the evil GOP as lame excuses. Want to save democracy? Do democratic things. The crazies will always be there, but will quickly fade back into the woodwork when people’s material lives are improved.

          • Yorkville Kangaroo says:

            Every time I hear the rust belt complain about all their jobs being shipped off shore I want to remind them that Reagan was the guy who arranged for all that to occur.

        • Seashell says:

          My 87 y.o.mother was in the ER at the beginning of Covid and I was not allowed to be in with her. I told them what was wrong and not to count on some of her dementia addled responses. Mom never called Trump anything but that fuc**** ass****. (She did have that right.) The Doctor called me later and said he’d asked her to name the Pres of the US. I waited for what he’d say next. “It’s not that she’s wrong…”

        • Snowdog of the North says:

          I am so sorry Ruthie. I have a niece and a nephew who have fallen under the spell of this Trump cult. Over years now I have tried to reason with both of them. I still love them both, but I decided to give up on trying to persuade them based on the vitriol I got back. And at one point each of them cut off all contact, but have now restored that at least through some channels. That said, I’m still here whenever they need me, but I don’t engage with whatever they say on politics. I find it really sad, but you can’t reason with someone who refuses to reason.

      • Rayne says:

        LOL It’s not a set, it’s at Mar-a-Lago. It’s their weddings and event hall, believe it’s in the south wing. Trump’s used it for media events related to his campaign in 2016 and meeting with the Chinese delegation in 2017 and Japanese in 2018 during his term in office.

        I will be so glad when we don’t have to talk about this greasy orange loucheness and his properties.

        • Scott Rose says:

          It is as though Trump fashioned himself the reincarnation of Louis XIV, but –unlike le roi soleil — did not have any artists among his contacts.

        • BrokenPromises says:

          It is listed as used in fraud by *rump in Letita James suit. Perhaps it will end up being seized to help pay the 250 million fine.

          On a side note I thought perhaps they were in the Kremlin for that interview.

        • Yorkville Kangaroo says:

          Oh indeed that is his entire idea of ‘classy’. Faux Louis XIV with fake marble, crystal and 9K gold plate everywhere! Going to be interesting whenever someone tries to sell/buy it.

        • Callender says:

          I’m sure I’m not the only one who has noted the fact it looks like a digs of a middle eastern potentate.

          My wife was a senior staffer on the Commission on Wartime Contracting in Iraq and Afghanistan, and as part of her duties spent time in Iraq, where she had the opportunity to see Saddam’s castle.

          She said the similarities were striking.

          • Rayne says:

            His Trump Tower condo is even more obnoxious and a better representation of his personal tastes because Mar-a-Lago still retains some of Marjorie Merriweather Post’s original decor elements.

            I think all of his taste tends toward the florid excess of eastern European Baroque, about which even advertisers joke.

  5. Lawrunner says:

    As I stated on Twitter, this was going to be the result.

    It’s frightening that anyone thought the 11th Circuit would rule otherwise. There was NO basis in law (or fact) behind Cannon’s ruling.

    • Quake says:

      I wasn’t so sure. I’m glad you were right. Two of the three judges on the panel were appointed by Trump, but, fortunately, neither was a loose Cannon.

      • Tarkeel says:

        Anna Bower had some interesting observations [1] [2] on twitter:

        On second look, Britt Grant was a terrible draw for Trump on the 11th circuit panel. Sure, she’s his appointee and very conservative. But her husband served in the CIA for more than a decade.

        “Those docs that could compromise human intelligence sources? Yeah, they’re MINE.” Good luck telling that to a CIA wife.

        I spent a lot of time at the 11th Circuit this summer. I’ve watched both Grant and Brasher in oral argument + read a number of their decisions. They are very much Trump judges. That even *they* felt compelled to grant DOJ’s request is telling.

        • Faithdc says:

          This is extremely illuminating. But I’m still terrified of the damage McConnell/Trump has done to the federal judiciary, which your post also makes clear.

      • Ravenclaw says:

        Somewhat to my surprise, frankly. They are both inexperienced extremists. Probably the simple fact that the law was so clear saved the day.

        • Ruthie says:

          Couldn’t the same have been said regarding the case presented to Cannon? As more knowledgeable people pretty much unanimously commented (even Bill Barr!!), her reasoning was trash.

          Perhaps the difference in this case is that 2 of the panel members would have had to confront and then disregard the scorn and/or incredulity of the other for Cannon’s reasoning to prevail.

          Then again, that hasn’t seemed to be a problem at the SC.

        • Ginevra diBenci says:

          The law was so clear, and they knew the legal eyes of the world would be watching. They had seen how Cannon’s work got thrashed, especially (though implicitly) by Dearie. Dearie’s understated application of the Actual Law choke chain clearly served as a model for them.

          • Ravenclaw says:

            I think you may be right there. Still, it wasn’t an obvious “done deal” before the fact. Those two really are hard-core reactionary types.

        • timbo says:

          Cannon’s ruling did not fit with the idea of the Unitary Executive too well. It suggests that once you’d been a Unitary Executive that it was now something you took with you after you were voted out. That’s not going to fly well with folks who take seriously the Constitution and the relative stability it has conferred on the United States these past 160 years basically. This is one of the things that the Framers got right—the self-interest of the Article III branch is not strengthened by any sort of endemic permanent powers of individual Presidents.

    • Drew says:

      By the way, this per curiam opinion, as strong and unequivocal as it is may well reflect a dynamic of two judges who felt strongly about the ruling and one that might have caved to their Trumpy inclinations. In other words, the law is very clear–so clear that Cannon should have seen it, but she chose instead to make a strained partisan ruling that didn’t conceal that she was entirely doing it to be deferential to Trump. Trumpy judges can be tempted to go the route of deference, though they are not all equally so inclined. But there’s a cost to doing so. Aileen Cannon will pay that cost, at least reputationally. So, if two judges are inclined to support the prerogatives of the DOJ on national defense, etc a vacillating third judge is more likely to just quietly assent than to write an embarrassing dissent supporting Trump’s insupportable position.

      I agree, though, it would be hard to find any panel with two judges willing to go down Cannon’s route, especially if the third judge was pushing hard for the correct decision.

      [Welcome back to emptywheel. Please use the same username each time you comment so that community members get to know you. You used a single letter “D” for this comment though you’ve commented 366 times as “Drew.” I am reverting your username to “Drew” in case this was merely a typo. This would also be a good time to consider a longer, differentiated username as we will be moving to a minimum of 8 letters, and “Drew” is too easily mistaken for other users “Andrew.” Thanks. /~Rayne]

      • Drew in Bronx says:

        Sorry Rayne, I didn’t realize I’d made that slip of the mouse. I’ll update my handle to this, if it’s ok.

        [Fabulous, new username is perfect. Give our regards to da Bronx! /~Rayne]

  6. PeterS says:

    So the 11th Circuit did not support Trump, they made the correct decision and did it quickly. Who was expecting otherwise?

    • Benji says:

      NAL – but given the mob mentality the MAGAts exhibit and tendency to go directly to ‘intimidate’ mode to force their point – I am guessing that many thought the 11th would cave and follow Cannon down the rabbit hole.

      I do not revere the law but understand the need for a common and equitable set of rules for the common good. I believe I know the difference between law and justice – this swift decision appears to be one one the rare (IMHO) instances where both were achieved.

      I sincerely hope that there are charges brought against TFG and that Beryl Howard pulls these shenanigans back to DC.

      • PeterS says:

        “I believe I know the difference between law and justice – this swift decision appears to be one one the rare (IMHO) instances where both were achieved.”

        Perhaps these instances are not rare at all, it’s just that the contra-instances get lots of publicity.

    • Bugboy says:

      For those of us who have immense faith in the system, Judge Cannon’s shenanigans (@Benji, sorry for coincidentally stealing your term) greatly shook that faith, on top of Dodd, et. al. I think I speak for many here that with this 11th Circuit stay, some of us are going to be sleeping a bit more soundly…

    • bawiggans says:

      Given that the 11th Circuit is sandwiched between a district court that is operating within a jurisprudence constructed out of whole cloth by a federal judge and a Supreme Court that has discarded precedent in favor of various pet “doctrines”, I don’t think it is too hard to imagine why some might not have shared your confidence that the rule of law would prevail at this level (or, perhaps, any). This is an important victory but, unfortunately, I think it was never a foregone conclusion. There is precedent for doubt.

  7. greenbird says:

    what “other places” besides MAL ? were (boxes/documents) sent to, Mr. Hannity ?
    please advise should there be a transcript and link for that Kafka cataract of Fox-y words.

    • Rugger9 says:

      Bedminster and Trump Tower comes to mind, since Individual-1 spends significant time in both locations, especially Bedminster. While searching the tower, perhaps the Feebs can bring some measuring equipment.

  8. d4v1d says:

    The decision seems like a remedial lesson for Cannon and a memo to Gorsuch, whose bias appears to weigh heavily ‘the letter of the law’. Because assuredly, this is not the end of it. Cannon’s decision would make sense only if residual power somehow clings to the ex-president (or that he is still president). Heritability is definitively not in the Constitution by any interpretation whatsoever – it’s what the Constitution is written explicitly to foreclose.

    • Faithdc says:

      I’m fully expecting Trump to still declare – in legal filings against this search – that he is still POTUS.

  9. GKJames says:

    The panel’s Richey analysis is interesting. It finds the (undisputed) absence of DOJ’s “callous disregard” of Trump’s constitutional rights to be the “’indispensab[le]’” factor … [i.e., by itself] reason enough to conclude that the district court abused its discretion in exercising equitable jurisdiction here”. The rest of the exercise is merely for “completeness”. Quite a smack-down.

  10. joel fisher says:

    Two things:
    1) In a trial where the character of the documents becomes an issue, could Judge Dearie become a witness?
    2) Hilarious to note that Trump’s lawyers didn’t say–callous disregard–what Trump, himself, has been loudly proclaiming to his droolers.

    Your post has made my day.

    • emptywheel says:

      He could. But he was refusing to look at the documents, even before this order. Without the order, there was a possibility that he and Cannon would disagree about what to do with the documents, and whether they were classified. I don’t see how this happens now (I’m not even sure Trump will appeal).

      The one other outcome Cannon could try to get to is in finding a grave Fourth Amendment violation.

      • joel fisher says:

        Be pretty hard for his lawyers to suddenly remember–“Wait a minute; it all comes back to me.”–all that callous disregard.
        One wonders whether, as a witness in US v T, Dearie’s provenance–requested by the plaintiff in T v US–would be relevant.

        • paul lukasiak says:

          technically, Team Trump was on the record saying they weren’t filing a 41(g) motion, and as such there was no need for them to provide evidence of callous disregard. The decision to create the “hybrid motion” and apply Richey tests to it was Cannon’s exclusively.

      • dude says:

        I understand this is not yet a trial but an argument about admissible evidence. Having said that, can Trump now fire his lawyers for some alleged (or actual) incompetence and restart the argument over admissible evidence with a new crew?

  11. NeoGeoHa says:

    This is very good news, although it should have never come to this. I also believe all the DoJ really cares about are these classified docs. They are needed to fully understand the possible exposure implications for the nation and the intelligence community, including actual people who may be at risk. Also, these classified docs are the ones that are the real evidence of crimes laid out in the search warrant. The DoJ can now continue to work the case from a damage understanding, damage limitation, and criminal evidence perspective. Hopefully TFG any many others will be held accountable sooner than later for the crimes they have/continue to commit. I have a suspicion the feds will find evidence some of this intelligence was shared/sold at some point.

    While it was wrong that TFG took many docs he had no right to take (letter from his predecessor, hurricane map, etc…) the DoJ likely would not have executed a search warrant for them. My guess is all these other materials will continue to go through this convoluted process, and eventually end up in the Government’s possession anyways, except for a handful of materials they would likely have returned.

    The LAST thing TFG wanted was this “carve out” for the classified materials. Definitely bad news for him. And usually anything that is bad news for TFG, is good news for the country.

    • JohnJ says:

      As a retired CIA higher up told me, 80% of classification is to cover someone’s F’up, but that doesn’t mean that the remainder are not critical.

      I started my electronics career working on NSA spy equipment on a top secret program. (sub contracted from the biggest intelligence supplier in the world at the time, IBM). We were able to just point an antenna at the Russian embassy and see what was on the monitors of their classified word processors.

      The problem with that technology was it was very simple once you knew how it worked. Recently, to prove that to an engineer friend of mine, who happens to be an Amateur Radio operator (HAM), how critical the secret was, I took 5 sentences to tell him exactly how to do what we were doing with equipment he had at home. (The tech was from the 70’s and is now in Wikipedia so I didn’t give any state secrets).

      Such little information getting out would have destroyed a critical intelligence source and shut down a complete Gov’t program because the other side would have just figured out how to shield from it. Ronnie Ray-gun damaged the program when he admitted that we intercepted a Gaddafi Telex before he threw a few bombs at him.

      • Jeffrey Gallup says:

        In my experience, most classification can be justified, although not necessarily on strict grounds of US national security. I typically classified as confidential any discussion with foreigners, whether government officials or non-governmental types. This was to protect the source, who in some countries might be subject to arrest or death if he or she were revealed as a USG source, even if the subject matter was anodyne. It’s not much different from journalists protecting their sources. And if you can’t protect them, your sources will dry up.

      • Doctor My Eyes says:

        It is difficult to predict what might have value to a foreign adversary, better to play it safe all around. Since we seem to think enough time has passed to talk about old secrets, I’ll tell this one, which was used as an example to teach us submariners that loose lips sink ships, or at least can make them less expensive to build. A high-level member of the US nuclear program was given a tour of a Russian submarine. He noticed that, in order to account for the shrinking and expanding of main steam pipes, the Russians were installing expensive flexible couplers. Meanwhile, the US Navy was dealing with the problem by interrupting straight pipe runs with a U shape at much less expense.

        • Yorkville Kangaroo says:

          Though apocryphal, the Americans (via the Fisher Pen Company) spent a million or so on a ballpoint pen that could write in zero gravity while the Russians used pencils.

          It ought to be noted that NASA decided to send their astronauts into space with MECHANICAL pencils, whose leads had a habit of breaking off and causing serious issues in Zero G, all at the bogglingly expensive sticker price of approximately $130.00 per pencil…in 1965! That’s a mind-numbing $2,362 in today money.

          Thereafter they tested Parker’s AG-7 pens and bought them for the princely sum of $2.39 discounted in bulk from the retail price of $3.98. The Russians purchased theirs not long after..

          Both stories, though, show the differentiation of how engineers attack the same problem.

    • Ravenclaw says:

      I could well be wrong, but I don’t think DoJ was concerned *solely* about the classified documents and their implication for national security. There is also the question of what conspiratorial and/or criminal activities might have been described in some of the documents, most obviously from the postelection period’s coup planning but also things like the complete transcript of the Zelensky call, translator’s notes on the Putin conversation in Finland, and so forth.

  12. Bay State Librul says:

    Why do I think that the whole idea of this preposterous lawsuit is to somehow get the issue before the Supreme Court so they can severely weaken US vs Nixon [1974}

    Brief Fact Summary. The special prosecutor in the Watergate scandal subpoenaed tape recordings made of President Nixon (the “President”) discussing the scandal with some of his advisers. The President claimed executive privilege as his basis for refusing to turn over the tapes.

    Synopsis of Rule of Law. Although a President deserves great deference regarding his Article II constitutional privilege, that privilege is not absolute and must be balanced against other constitutional interests.

    • Snowdog of the North says:

      Well, I think that would be very difficult in the current circumstances because U.S. v. Nixon involved an assertion of executive privilege by the then current President. Here, a former President is trying to assert executive privilege against the executive branch headed by the current President. I think the synopsis would be likely to read: “Former Presidents cannot assert executive privilege without the concurrence of the current President.”

  13. harpie says:

    THANKS so much for helping us get through this whole labyrinth, Marcy…
    There seems to be much more to read from even an hour ago!

  14. WilliamOckham says:

    This ruling is evidence (not proof, evidence) that bmaz is right about the DOJ messing this up by being too timid/deferential. That is, if the suspect in this case had been literally* anyone else in the world, the DOJ would have immediately appealed and moved for a stay of Cannon’s entire ruling. And they would have won on jurisdictional grounds. And because they didn’t, this case is a much bigger mess than it would have been.

    * I’m using “literally” literally, not as a synonym for figuratively.

    • Puriya says:

      IANAL. But I’ve been thinking about DoJ style since a discussion with bmaz and Marcy a couple of days ago. One can say it’s timid/deferential (this is a very US thing–if you aren’t willing to assume the worst of your opponent and go to their throat right away, you’re too timid). Or one can say it’s a great way to build reputation.

      This is not a one-shot game of prisoner’s dilemma. The weight of the DoJ filing in scotus will be enhanced by the AG’s reputation as a fair person. I am not familiar with his previous work, but I’m guessing he has that reputation because he doesn’t aggressively overreach? Would this be the kind of thing the guy who spoke at Ellis Island would do? And we need someone with that strong a belief in doing the right thing, fairly, to get through what lies ahead of us, even if everything goes as well as it can.

      It was easier for the court to rule on a narrow request. It’s all going to the Supreme Court anyway.

      Just yesterday many reasonable legal experts were concerned about how the 11th circuit would rule, so it’s not terribly clear that this was how it would obviously turn out.

      I await bmaz’ questions about the evidence I have for my speculation above.

    • Ginevra diBenci says:

      How does this ruling indicate bad DOJ strategy to you? I was felt Garland-messed-up argument had legs, but this ruling seems to me to vindicate DOJ’s narrow focus. I want to hear the opposing view.

      • earlofhuntingdon says:

        The implication is that the decision was so resolutely in favor of the government and a normal reading of the law that the DoJ should have appealed Cannon’s holdings sooner and more aggressively. Hindsight is wonderful, but here it’s not all hindsight. A number of prickly voices on this site thought it should have done that long ago.

        I think the argument illustrates a kind of creeping self-censorship, which amounts to a victory for Trumpism and the FedSoc’s packing of the courts. The argument is that Cannon’s outrageous interpretations created fear that other courts, including traditionally conservative appeals courts, might follow suit. So the DoJ delayed appealing and narrowed the grounds of its appeal to issues on which it thought it couldn’t lose. The 11th Cir.’s opinion suggests that strategy was sound, if too conservative. But, who knew ahead of time, apart from some voices here.

        That dynamic reinforces the importance of Biden pushing harder for his judicial and political appointments. And for serious court reform. That should not be limited to personnel. Other issues need addressing, such as requiring that only federal courts in DC can issue nationwide injunctions against the government.

        • Doctor My Eyes says:

          Good point about the creeping self-censorship, or perhaps the situation can be viewed in Overton window terms. There seems to have been a lot of “let’s just pretend this is normal” behavior over recent years.

          I’ll keep repeating that I think and hope that the DOJ, unlike most of us, is much more focused on the damage to national security than on bringing Trump to justice. I believe they carved out those documents because access to those documents is essential to assessing the damage. It’s triage more than a legal tactic.

        • mamake says:

          _Thank you_ ‘eoh’ for frequently calmly explaining, clarifying and/or expanding on many comments that are not obvious (at least not to me as a member of the IANAL community).

          I appreciate it very much! And to others who do this as well (Peterr, Rayne etc).
          I can’t name them all, but it really helps for those of us who are huge fans of Marcy & team, who want to know and understand, but who do not have many hours of the day to read and study.

          I’m sending another check because this site and most of those drawn to it are invaluable.
          If you haven’t contributed, I encourage you to do so. This is the best place to read reliable information.

          • John K says:

            I feel exactly the same way about EOH and the others that you mentioned; I couldn’t have said it any better. I have been wanting to donate for quite a while but it’s been hard to justify on a meager fixed income. Well, necessities are necessities and, for me, truth is a necessity, so I’ll be sending something today. A few things have gone well for me lately, so hopefully, I’ll be able to sustain some kind of a regular donation.

      • paul lukasiak says:

        Well, for one thing, its a massive waste of taxpayer dollars.

        Most of the jurisdictional issues are the same regardless of whether we are talking classified or unclassified docs. And the jurisdictional issues were such a slam dunk that the Appeals Court used the term “abuse” (rather than something less condemnatory like “over-expansive”) when describing Cannon’s exercise of discretion.

        Additionally, (and IANAL, so proceed with caution) in order for the DoJ to get a stay on the rest of the order from the appeals court, it will now have to prove in a separate request that both the government and public interest will suffer irreparable harm if a stay is not granted for the rest of the case. And having NOT made that assertion in the original filing, its going to be much harder to prove that a stay is necessary.

        And given the speed at which actual appellate courts move in most instances, the entire Special Master process will be completed absent a stay before scheduled briefs are even submitted, let alone oral arguments heard, etc. That will render the appeal moot, absent Dearie doing something unexpectedly stupid — and MOST of Cannon’s ruling will stand simply because there was no point in issuing a ruling once Dearie finishes his work.

        (I don’t think that even Cannon is stupid enough, at this point, to try and ignore Dearie’s findings, so she’ll just let this thing fade into the sunset…)

    • emptywheel says:

      I don’t agree.

      This was a slam dunk and limited the immediate damage. Given the ruling DOJ may argue their appeal far more broadly. But had DOJ argued everything from the start, it might have been a tougher issue.

      • paul lukasiak says:

        Disagree. Given the urgency of the classified documents issue, the Court would have almost certainly operated with dispatch under any circumstances.

        Worst case scenario would probably have been a day or two more delay, and the Court itself separating out the classified materials and issuing a stay that only applied to those documents.

        • Yorkville Kangaroo says:

          Incorrect. Cannon’s own explanation stated that she believes just because the DoJ said something is Classified does not make it so. Her intital ruling would have been exactly the same.

  15. Zirc says:

    I have always maintained that Trump has at least one superpower: he can draw people with clean, if not stellar, reputations into his orbit and have them trash those reputations. Cannon would not have been mistaken for an outstanding jurist, but her rep was clean. Now, she’s discovering Trump’s superpower. And she brought it on herself.


    • joel fisher says:

      In the 2nd Trump administration she’ll be a SCOTUS nom. Meantime, lifetime gig in sunny FL. Her rep with 40% of the public is great; as for the rest, most will forget about her except for a few bitter assholes like me.

  16. Unabogie says:

    One thing that occurred to me is that this stay completely inverts the dynamic of the special master inquiry. Prior to last night, the Trump strategy was to drag this out indefinitely. They were already asking for extensions and delays before anything even started.

    But with this ruling, the DOJ has the stuff they really care about. So who cares if the press clippings are being dragged in front of Judge Dearie for the 10th time? It doesn’t matter! The whole ballgame was about stopping the DOJ criminal investigation and keeping them from using the stolen TS/SCI documents against Trump.

    I wouldn’t be shocked to see the Trump team drop the request for the special master completely at this point.

    • timbo says:

      It’s not clear that DOJ has everything they want here. And it is also not clear that there is not an on-going conspiracy with regard to the mid-terms and the next Presidential election. It has already been shown that some of the folks around Trump tried to get pardons for their participation in the incitement to riot in DC on Jan 6, 2021. What else is going on where folks might be looking forward to pardons? It’s an open question and not one to put past any of these folks who have worked with Trump to undermine the Constitution and the rule of law in this country. Are they done yet…or just getting started?

      Looking back, we have folks like Gen M. Flynn, Stone, Bannon, Manafort, all of whom got pardons or commutations. These acts undermined the stability of the Republic significantly. What is it we have forward to look to now? More of the same or worse? This is where time is critical if there are more folks willing to do whatever it takes, law-be-damned, to see Trump back in power in DC.

  17. Doctor My Eyes says:

    As to the calm assertion upthread that naturally everyone should have been quite certain that the 11th would rule quickly and wisely, I guess because this is America and all, I have to say that we live in two different worlds. If the last 6 years has taught us anything, it should be that NOTHING is assured when it comes to respect for law, precedence, and the constitutional order. No, I was not certain of this ruling. It comes as a tremendous relief.

    • Doctor My Eyes says:

      I also note that in the national discussion there is much more concern with Trump the person and precious little expressed concern for the potential of very real and very damaging disclosure of highly sensitive national security information. My guess is that the primary reason the DOJ carved out these classified documents had little to do with a strategy to make sure Trump gets what is coming to him and everything to do with the fact that their primary concern is the national security of the United State. This is as it should be, of course.

      With the steady growth of our celebrity culture, it seems we are losing the ability to even think about abstract issues in separation from personalities. “Irreparable harm” to the interests of the US means irreparable harm to us all. IMHO, fear of the effects of the disclosure of national secrets should be much more motivating to us than a desire to see Trump humiliated. But people by and large seem incapable of imagining that it is possible for disclosure of these materials to have an impact on our lives, including even on our standard of living. Don’t get me wrong, I’m no fan of US imperial behavior, but I remain a patriot.

      • xbronx says:

        Thank you for that last line – ” Don’t get me wrong, I’m no fan of US imperial behavior, but I remain a patriot.” Sadly, for far too many Americans, patriotism has been replaced, first by jingoism and then by fascism. They only hear and adhere to the first part of “My country, right or wrong;” They leave out, or have never heard the second part which comes after the semicolon and is much more important – “if right, to be kept right; and if wrong, to be set right.”

      • rip says:

        My ex-FIL was an Army intelligence office stationed in many places around the USSR. He was fervently patriotic at that time.

        He was also a racist and very intolerant of “others” in whatever form. I’m sure he went to his grave as a firm trumpist and would have totally forgiven trump for taking documents and even sharing with his old enemy, the USSR (aka Russia). I don’t know how to rectify this dissonance – don’t know when he and others just switched sides, changed their allegiances, bought the lies.

      • timbo says:

        This is about personality because that personality is still there, undermining the stability of the country. This personality has pardoned folks like Bannon, Stone, Manafort, Flynn. These are not great upholders of the Constitution for the most part. While institutions are about process, there are such things as disruptive personalities. Trump is one such disrupter.

        The pull of the personality can be seen in the way Cannon decided to just be Trump’s lawyer while sitting as a federal judge on a civil suit; rather than deferring to the defendant in the law suit, the USG, and placing much of any burden on the plaintiff, Trump, this federal judge decided that ghost evidence could be used to justify all sorts of nonsensical rulings from the bench…

        • Yorkville Kangaroo says:

          The Donald displays Histrionic Personality Disorder as well as many of the Type A and, particularly, Type B Personality disorders. He has always required acceptance of the higher social structures (of which he has never been able to gain ANY) but will settle for the ‘adulation’ of any obsequious toady he can get within his orbit. I’m sure Mary Trump has probably noted that his running for POTUS only super-charged this effect as did his Presidency.

    • KPH from Texas says:

      Simply striking parts of the order is itself problematic given that the 11th CApp started it’s opinion by finding that “The absence of this “indispensab[le]” factor in the Richey analysis is reason enough to conclude that the district court abused its discretion in exercising equitable jurisdiction here.”

      Arguably (and I would say clearly) the court’s analysis in this section of the opinion was NOT limited to just the classified documents. The district court’s order finding no “callous disregard” was to all of the seized documents and the parties did NOT dispute this finding. Thus, this section of the opinion is a huge blazing billboard saying that ALL of the district court’s orders are void ab initio because the district court lacked subject matter jurisdiction.

      A reasonable judge, seeing the above sentence, would have modified her order AND then ordered expedited briefing on jurisdiction.

      And yes, the 11th threw out the “inherent authority” bone but clearly telegraphed “good luck with that”.

      Saddly, there is another round to go in the district court.

  18. Mister Sterling says:

    What a painful, stressful month this has been. I will sleep easier so long as the Supreme Court does not take-on Trump’s appeal. If they take this case, then we’re done for. Bill Clinton will have residual executive power. Call me naïve, but I don’t think they will touch this. And call me naïve again, but I don’t think the DOJ is going to dance around the midterm schedule to decide when they start filing indictments. The indictments will drop when the DOJ has enough evidence to convict. And they wouldn’t have plans to indict if they went forward with the affidavit and search warrant.


      • Troutwaxer says:

        Jimmy Carter, Bill Clinton, Barrack Obama… Bush II would probably side with the democrats about classified materials. No way the Extremes are touching that one!

    • Yorkville Kangaroo says:

      Unfortunately, probably naive. Whilst no reasonable bench would touch this we now have a reactionary and activist majority on the bench that believe the POTUS should be allowed unfettered reign over anyone employed (and, probably, anyTHING) within the Executive Branch of the US Government.

  19. paul lukasiak says:

    To me, the most important part of the opinion is that it literally lays out what the DoJ has to say to get Cannon’s entire decision throw in the trash bin. The jurisdictional issues apply to all the documents, not just the classified ones — and absent jurisdiction Cannon’s intervention cannot stand.

    And the appeals court obliterates the entire “hybrid motion” assertion made by Cannon in ways that should signal to her that the best way to avoid further humiliation would be to entertain a motion to vacate her entire decision in the wake of the appeal’s court opinion. She would probably have to give Trump an opportunity to apply for a stay of the Appeals Court ruling to the Supreme Court (almost certain to be unsuccessful), but that’s about it. Her entire ruling is toast.

    As an aside, the Appeals Court did do Trump one massive favor by acting so quickly — Team Trump no longer has to address the question of whether documents were declassified or not. The appeals court ruled that the Government does not have to turn over the documents marked classified to the Special Master, so the Special Master no longer has to address the question of whether they remain classified.

    • rip says:

      “the best way to avoid further humiliation” would be for her to decide that she wants to retire and spend more time with her family.

      She’ll always be remembered for this one particular/peculiar decision and even if the FedSoc get their way (a SCOTUS position), she’ll be tainted. Assuming the populace cares…

  20. JohnJ says:

    Finally! Three special words that I have seen little of in media discussions about classified information:


    I have been waiting for that trump card to be wielded. (sorry)

    I was always trying to find out any juicy classified tidbits from my parents at the dinner table (Mother, J. Edgar Hoover’s witness that he used mafia speak to avoid actually committing blackmail on phone calls; dad, current at the time, active White House clearance (highest there was then)).

    I got absolutely nothing from either for the record. Not one word. In fact I had no idea what level my dad’s clearance was until he retired.

    When I got my Top Secret (my sister had hers a year before) I figured they would let loose so I asked. My dad smiled and said, now that you have the clearance you still do not have the need-to-know.

    I will never know WTF my dad worked on. I have no idea why he needed the nations highest security clearance.

    THAT is how classified information is supposed to work.

    • P J Evans says:

      My father had a Q clearance at times. I know some of the things he worked on, because he worked on them at home sometimes. I know he sometimes went to “Las Vegas” and “Albuquerque” for work (those weren’t the actual destinations).

      • JohnJ says:

        Wow. Not in my household, although his friends that came to dinner weren’t so quiet. That was just him.

        In fact, according to my father’s teachings, your dad would have gone to jail for that (that was his interpretation of how it worked).

        I don’t think my dad was working on nuclear secrets or something, in fact I deduced he was involved in WH communications (FCC) systems.

        My mother said she was terrified of what Hoover was putting in her “jacket” 20 years after she left the FBI. In her situation, the rules were whatever Hoover said they were. She must have know enough to take him down.

        Now I did have a spook neighbor who was removed from active duty because his wife said he would only tell her he was leaving and not how or when he would be back. Not a good thing to discuss at a party with a few Generals and people like one of the president’s speech writers.

        • P J Evans says:

          Mostly we didn’t know – especially when he was younger and he was working at major-local-employer-that’s-a-government-lab. The work-at-home was later, at a corporation. We still didn’t know much, but it wasn’t Q-clearance stuff. Which involved things like calling home to get the birthdates of his siblings. The closest he came to that was machining something from beryllium bronze (being an engineer and thus peon management, he wasn’t allowed to use the machinists’ union shop).

    • Overshire says:

      My dad retired from Lockheed’s Skunk Works, and in spite of asking regularly for years, I never had the slightest idea what kind of things he worked on, until finding his picture in a book about their history, after he’d been dead 20 years. Now I know that during that summer in the 80s when he was working 16 hour days, he was the Senior Systems Integration Engineer for the crew that hand-built the prototype of the first stealth fighter.

      • FiestyBlueBird says:

        Wow oh wow oh wow.

        If you are inclined, and still fascinated by that kind of stuff, you might enjoy the October Wired issue’s story “Patriot Games.” Through FOIA requests, a guy and his company made bank by selling declassified specifications of U.S. aircraft to foreigners. Some, military aircraft. Much is declassified after twenty years — but the shelf life of the value of that info is far beyond twenty years. He got in some deep shit for doing that. I haven’t yet finished reading the entire article, though subtitles to the article suggest there may have been a good side for the American public as well, for him liberating the info…I dunno…yet.

    • tinao says:

      Holey Moley John J, that is intense stuff. I am sorry your poor Mom had to live under that. Any way, I learned about the Need to Know basis from a skipper of mine up in Alaska. He had been a jumper in Vietnam, and had some really scary stories. He enlightened our crew about it because the fishing wars could get pretty intense, so we were fore warned.

    • rip says:

      Maybe a lot changed in the 80s/90s. Around DC, many I knew were people who had various higher-level clearances. There were industrial (contractor) clearances that were probably less stringent than employee ones.

      I hope this has been tightened up significantly. But given tfg’s massive destruction of security – I doubt it.

  21. earlofhuntingdon says:

    A slight digression to dispute the claim that the UK monarchy’s soft power isn’t real power. Donald Trump would shave his head to have this kind of control.

    The royal family “was given” a veto on what footage from its coverage of the queen’s funeral the BBC can rebroadcast. Anyone whose coverage derived from the BBC’s feed is also bound by that veto. That veto spans the globe. I hope the lessons the crown learned from Princess Diana’s life were not a) hide behind the passive voice, and b) micro-manage the press better.

      • earlofhuntingdon says:

        The government agrees with that position.

        In a concession to modernity, the monarch does voluntarily pay income taxes, but not inheritance or other taxes. Whether its income tax liability is calculated using Hollywood accounting rules or normal ones might be subject to debate.

        • Ddub says:

          Then there’s this from 2017 in the Paradise Papers:
          The papers show that the Duchy of Lancaster, a private estate of Queen Elizabeth II, held investments in two offshore financial centres, the Cayman Islands and Bermuda. Both are British Overseas Territories of which she is monarch, and nominally appoints governors.

  22. punaise says:

    Charles Pierce:

    …the Court of Appeals for the 11th Circuit landed simultaneously on his head and on the head of Judge Aileen Cannon, whose meddling in the Pool Shed Papers now has been definitively sent back to her with a big red “F” at the top of each page.

    For example, on the very topic of declassification, the appeals court—which includes two judges placed there by El Caudillo del Mar-A-Lago his own self—ruled that Cannon didn’t know what in the hell she was talking about.

Comments are closed.