Update: SCOTUS Will Not Intervene [Yet] In Trump’s Stolen Documents Claim

Update, 10/13: The Supreme Court just declined to intervene in Trump’s stolen document case. That means that the Special Master review will, unless something entirely unforeseen occurs, be limited to documents without classified markings.

I’m republishing because I think this post best explains the damage that might otherwise have been risked.

I laid out what SCOTUS might review later in this process here.

Given developments in the last two days, here’s how the various schedules pertaining to Trump’s stolen document case intersect (I’ve included the original 11th Circuit deadlines to show the effect of yesterday’s ruling to expedite the merits appeal):

October 5: Finalize a vendor

October 11: DOJ Reply to Trump Emergency Motion at SCOTUS

October 13: DOJ provides materials to Trump

By October 14: DOJ provides notice of completion that Trump has received all seized documents

On or before October 14, 2022: DOJ revised deadline to 11th Circuit

October 19: Original deadline for DOJ appeal to 11th Circuit

21 days after notice of completion (November 4): Trump provides designations to DOJ

November 8: Election Day

November 10, 2022: Trump revised deadline to 11th Circuit

10 days after receiving designations (November 14): Both sides provide disputes to Dearie

November 17, 2022: DOJ revised reply to 11th Circuit

30 days after DOJ appeal (November 18): Original Trump response to 11th Circuit

21 days after Trump reply (December 9): Original DOJ reply to 11th Circuit

December 16: Dearie provides recommendations to Cannon

January 3: New Congress sworn in

No deadline whatsoever: Cannon rules on Dearie’s recommendations

Seven days after Cannon’s no deadline whatsoever ruling: Trump submits Rule 41(g) motion

Fourteen days after Cannon’s no deadline whatsoever ruling: DOJ responds to Rule 41(g) motion

Seventeen days after Cannon’s no deadline whatsoever ruling: Trump reply on Rule 41(g)

As I understand it, one way the 11th Circuit appeal may be expedited is that the panel will be picked, secretly, from the start, giving it a chance to review filings as they come in. And they can schedule an oral argument, if necessary, for almost immediately after the reply brief comes in. It will be a new panel, so the odds are at least one other Trump appointee will get a chance to weigh in, in addition to the two who already ruled against Trump.

The SCOTUS appeal, remember, is for a limited issue: Whether to restore classified records to the matters before Special Master Raymond Dearie and, ultimately, before Judge Aileen Cannon.

Particularly given that even Clarence Thomas, in setting DOJ’s deadline a week out, isn’t treating Trump’s appeal as much of an emergency, I think the most likely scenario is that SCOTUS declines to consider Trump’s appeal. It’s the easiest thing to do, dictated by precedent if SCOTUS feels obliged to follow it, and made more likely by the fact that Cannon has altered the scope of her order. As the timeline above shows, if that were to happen, it might well happen before DOJ’s deadline for its appeal on the merits.

I think the most likely scenario is that the 11th Circuit sustains the opinion that three judges on the Circuit already came to: that Cannon abused her authority to even take the appeal. DOJ has more information about Cannon’s abuses they could choose to include in their brief, such as that Judge Cannon halted a national security investigation based in part on a document Trump made public six years ago. Though by the time Trump files his response, he will have been able to review all the documents seized from his beach resort (barring the classified documents, unless SCOTUS quickly reverses the Circuit). So who knows what kind of imagined injury he’ll invent after seeing all the documents? The Circuit may act quickly enough to rule before Dearie issues his report to Judge Cannon, which is the next most likely time for her to engage in more fuckery. Because of her past fuckery, it doesn’t even appear that Dearie will issue a report on the potentially privileged materials until then either.

In other words, the best scenario — and a not unlikely one — is that SCOTUS first declines to review Trump’s appeal, and then the 11th Circuit rules that Judge Cannon improperly intervened, all of which may well happen before anything else overt happens in Judge Cannon’s docket, though Trump would have the ability to and likely would introduce details learned from his review before the 11th.

But we don’t know.

As I keep saying, anyone who tells you they know how this is going to work out is selling you assurances that can no longer be offered with this 11th Circuit and with this Supreme Court.

One thing many commentators are claiming that bears correction, however, is the claim the only damage the Supreme Court review can do is delay: that even if SCOTUS permits Dearie and Cannon to review the documents with classification markings, it could do no more damage to the DOJ investigation. That is obviously false.

Assume for the moment that SCOTUS does take Trump’s appeal and does rule that Cannon can include classified documents in her review (to be sure, I think that unlikely). And assume for the moment that the 11th Circuit reverses itself and finds that Cannon acted properly by intervening in a national security investigation to protect Trump’s interest in a letter he himself made public six years ago. Assume, too, that the 11th Circuit leaves in place Cannon’s decision to treat this as a “hybrid” motion, yoking the Special Master process to a Rule 41(g) motion.

In that scenario, Dearie would issue his report, including regarding classified records, on December 16. He likely would uphold all DOJ’s assertions regarding classification, because he understands how classification at least used to work, before this case: that the current Executive gets unlimited say over what is classified (which is different than what is National Defense Information). Trump would then object to Dearie’s report (he is guaranteed to when and if Dearie ever makes one). Cannon would then review the report de novo, as she did with Dearie’s work plan. And she would write an opinion that either affirmed Trump on one or two minor documents, or said, effectively, that she agrees with Dearie’s classification designations, but that she believes Trump’s logic — that he declassified these documents by shipping them to Mar-a-Lago, and that’s why he refused to give them back — is reasonable.

There are other things Cannon could do to fuck up the prosecution, for example by deeming the 33 pages of correspondence with NARA included in the Category A documents seized from Mar-a-Lago, Trump’s personal possessions under rule 41(g) and returning them to him, thereby depriving DOJ of evidence that directly pertains to the crimes under investigation.

But the way in which Cannon could most fuck up any charges for 18 USC 793e (though not obstruction) would by by issuing an opinion that — even if she agreed all the documents were classified — nevertheless deemed Trump’s bullshit story, that he believed he had declassified these documents by packing them in a box and shipping them to his beach resort, reasonable.

Charging a former President under the Espionage Act presents unique challenges, but I think they could be overcome given what we know has transpired. We’re even likely to learn that Trump lied to the lawyers who knew better than to ship classified documents to his beach resort, and those lawyers will make compelling witnesses against Trump.

But if Cannon gets the opportunity to review Trump’s bullshit declassification story and deems it reasonable — even though she has virtually no relevant experience from which to judge that issue, even though she’s just one judge big-footing on a lawful warrant, even though such an opinion would likely be overturned on appeal — it might make charging Trump under the Espionage Act prohibitively difficult. That’s because that opinion from a judge that Trump’s bullshit story was reasonable would likely be enough to sway at least one juror, especially if the case were charged in Florida. And DOJ is not going to charge Trump — they’re definitely not going to charge Trump under the Espionage Act — unless they’re sure that the most credible people making these kinds of arguments are potentially implicated witnesses like Kash Patel. Yes, they might still charge obstruction (and they might only charge obstruction anyway), but if Republicans win back one or both houses, they will use an obstruction-only prosecution to claim it was a politicized prosecution.

So yes, Clarence Thomas could do harm by accepting Trump’s appeal and SCOTUS could do harm by ruling in favor of it. I don’t think that’s the most likely outcome (and such a move would likely to lead to further appeals). But there is a risk of harm beyond a simple delay.

88 replies
  1. GKJames says:

    And can we expect that, in support of his I-declassified-everything argument, sworn statements will magically appear, to which Cannon will give credence even though there is no evidence of declassification?

    • James P Young says:

      People seem to be overlooking the fact that regardless of Trumputin’s assertion that he declassified any document, that declassification doesn’t make it his document to take, period. The Presidential Records Act gives a former president certain rights to access and limit access to the documents in the possession of the United States, but it rules out the possibility of a former president possessing presidential records after his presidential term. Moreover, The Espionage Act of 1917 prohibits obtaining information, recording pictures, or copying descriptions of any information relating to national defense. The law criminalizes the unauthorized retention or disclosure of information related to national defense that could harm the United States or aid its enemies. It was enacted decades before the executive branch established the current system of classifying national security secrets.

      • Glen Dudek says:

        Dr Wheeler wrote about this here: https://www.emptywheel.net/2022/08/10/dojs-june-mar-a-lago-trip-helps-prove-18-usc-793e/

        IANAL, but as Dr Wheeler points out above, if Cannon deems the declassification argument reasonable, “it might make charging Trump under the Espionage Act prohibitively difficult.” This is discussed in some detail at Lawfare here: https://www.lawfareblog.com/classification-status-trumps-mar-lago-documents – specifically “…under case law, information relating to national defense must be information that is both closely held and potentially damaging to the United States or useful to an enemy of the United States if disclosed. These judicially imposed limitations on the term have saved it from vagueness challenges. The continued classification of the information is how the government usually proves that it meets both of these requirements.” It is not insurmountable, but it is something that would have to be overcome at trial both in the minds of the jurors, as Dr Wheeler points out above, and to help avoid constitutional challenges.

  2. Bay State Librul says:

    Where do I hang a ralph?
    The legal system makes me crazy.
    We are heading to the home stretch of absurdity.

  3. jeco says:

    Jurists like Cannon and Clarence are shameless without a shred of impartiality and the past will be prologue in sabotaging this case.

  4. Rollo T says:

    5th paragraph: “that Cannon abused her authority to even take the appeal.” Did you mean “case” instead of “appeal”?

  5. Paul Sturm says:

    I’m fascinated by the argument, “he declassified these documents by shipping them to Mar-a-Lago”. This is definitely a different defense than “he had a standing order to declassify anything he brought to the Residence”. But is it a different defense than “Trump declassified these documents in his mind”? I.e., is Trump going to claim that he *knowingly* declassified the documents, or is he going to claim that “shipping to Mar-a-Lago” *implicitly* declassified them, without even necessitating his conscious awareness at the time that his actions made them declassified?

    That gets him out of having to lie about thinking it through at the time, or having some paper trail, or having to round up someone to claim they heard him make a verbal pronouncement. All he has to say is, “well, I mishandled them, so obviously I, as the embodiment of the Executive, no longer considered them sensitive or treated them as sensitive”.

    I think this line of reasoning can be traced back to the time he blurted out Israeli secrets to the Russian Ambassador — the argument at the time was made that, if the President chooses to disclose classified information, he can do so and such information becomes no longer classified. Now replace “disclose” with “mishandle”, and voila! We arrive at the state-of-the-art argument that shipping-to-Mar-a-Lago implicitly declassifies.

    • Silly but True says:

      Media loves to get things wrong, and the more we hear, arguably the more reasonable certain possibilities become.

      Where we started: “Trump stole US nuclear secrets and claims he bulk declassified 25 pallets of 11,000 documents with his mind.” Where we are, which is still not where we might end up: “There are 100 documents with classification markings.”

      Whether he did or didn’t is still an unresolved question, but there’s quite a difference in fact between suggesting he walked to 25 pallets of shrink-wrapped document storage boxes and waved his hand over them saying “I declassify thee” — an absurd, norm-breaking image — versus a far more real possibility that of all of the classified documents generated and handled within the four years of Trump’s administration that he may have personally handled 100 of them individually to review and declassify with his national security advisor witnessing it.

      The next immediate question is, well where’s the paper trail? If the first question is forced to devolve into just a timliness of notice during an outgoing transition that was negotiating with the US government on a 6 month transition timeline after leaving office, that can quite simply be resolved in its documentary notice, then that is going to favor Trump’s narrative. He would immediately claim, “Look, my job was done when I legally declassified them under legitimate POTUS powers while I was still President vested with them, it was for all of the subordinates and NARA to promulgate that Presidential Act, and if they didn’t, blame them.”

    • earlofhuntingdon says:

      A basic problem for Trump remains: classified or not, and barring a handful of legitimately personal documents, the materials would remain either presidential or federal records, which makes his possession and use of them unlawful.

      • ScottMI says:

        And since the subpoena was for “documents with classification markings,” not “classified documents,” withholding those materials still constitutes obstruction.

      • Paul Sturm says:

        Ah, but that’s the beauty of it — not only did the act of mishandling the documents implicitly declassify them, it *also* implicitly rendered them personal documents under the Presidential Records Act! That’s the other branch of argumentation that Trump’s lawyers are telegraphing but not claiming explicitly: the PRA absolves the former President (and his designee) from any and all special handling requirements imposed by any other laws or executive orders. I’m giddy with anticipation for his team to present these claims in their full glory in court!

      • Marvin SAMMONS says:

        There’s the rub. There are already acknowledged privileged documents inappropriately confiscated, improperly shared and illegally leaked. Likewise the fact that the warrant has now been shown (against persistent suppression by DOJ) to have been issued in part specifically to regain letters written to Trump personally by Obama and Kim Jon Un rather than “nuclear codes” as rabidly reported prior to the FOIA lawsuit ( why not covered by the nuclear codes media?). There is no slam dunk here regardless the echo chamber you play in.

        • Ddub says:

          “There are already acknowledged privileged documents inappropriately confiscated, improperly shared and illegally leaked.”
          Can you substantiate this? It sounds like echo chamber material to me.

        • James P Young says:

          Wait, as has been discussed, even if Trumputin did declassify them (there’s no evidence to suggest he did) the classified documents aren’t his to take. At the end of the day, his claims he declassified the documents just by thinking about it, doesn’t change the classified nature of the documents nor does declassifying them make them his personal property. In fact under the Presidential Records Act, gives a former president certain rights to access and limit access to the documents in the possession of the United States, but it rules out the possibility of a former president possessing presidential records after his presidential term. Thanks to Nixon.

          When Eisenhower went to write his memoir, he wanted to confirm information he had to go to a military base and an officer brought down the documents he wanted to see and stood there while Eisenhower perused the documents. At no time was Eisenhower left alone with government documents even though they were created during his term in office. That was decades before the PRA, so he was adhering to the Espionage Act of 1917 passed two months after the United States entered World War I.

          Also, the search warrants that were served on Trumputins residence included the confiscation of anything that was “co-mingled” with any classified documents the F.B.I found during the search. This too is a common practice when a search warrant is served on anyone’s residence.

        • Shadowalker says:

          “ “Inappropriately confiscated”?

          Where do you get that?
          A valid search warrant was executed.”

          Probably FauxNoize or Noize(to the)Maxed.
          Apparently they haven’t seen how common criminals are supposed to be treated.

          Though they did give Two Scoops Donnie more leeway than others. First they asked (oh look Compartmentalized Top Secret Documents!), then after a referral to the FBI to investigate, a grand jury subpoena was issued (NARA is prohibited from using the courts to enforce the PRA, the FBI even had to subpoena the docs from NARA to gain legal access of it’s own). All this before they gained enough evidence showing probable cause that a crime had been committed that would convince a judge to sign the search warrant.

    • bawiggans says:

      This is an analogue of the Papal Infallibility doctrine adapted for the American presidency. Let’s see the constitutional or statutory “bull” proclaiming it.

    • SMF88011 says:

      I have more faith in the legal system than you. It is my belief that even the courts will not accept that Trump could have declassified these files like he claims he did or any possible future defenses unless actual paperwork is found showing he had done so. Further, there ARE things that a President cannot declassify on his own; the Atomic Energy Act classifies materials in such a way that the President cannot declassify them on his own. I am sure that some of the documents he had stolen fall under that category or one of similar circumstances.

      What this has come down to is the tactic of delay the inevitable and to minimize the damage Trump inflicted upon himself. He hopes that he can get this down to a slap on the wrist and then turn it around and say he is still being politically persecuted by the Deep State and Democrats. Heck, he is already fundraising off it.

      What I see happening is that Trump will ultimately plea, get a deferred sentence, and have to pay a fine. If it was an “average” American that did what he did, they would be sending post cards from Leavenworth for the next 20 years.

    • Stephen Calhoun says:

      It is Alice-In-Wonderland stuff when you have to take seriously Trumpists throwing various rationales against the wall hoping one (this time!) sticks. The shipping-to-Mar-a-Lago hinge gets added to the various attempts to describe, variously, how documents were declassified while Trump was still President.

      Then come communications between Trump’s lawyers and NARA starting in early 2021. When does the ‘shipping hinge’ first appear in writing?

      Hey, it is fairly late in this crime scheme to bank on an act of imagination to provide the save.

      • FL Resister says:

        “ Hey, it is fairly late in this crime scheme to bank on an act of imagination to provide the save.” — S Calhoun

        Music to my ears. But the judicial hat trick Trump has devised has not, as Marcy reminds us, completely played out.

        The Mob Boss Ex President’s crimes have nearly overwhelmed the system and we sit on razor’s edge of the largest investigation in DOJ history.

        It’s early October, and Democrats are producing receipts while Durham sinks and new Hunter Biden bait is released by the same reporter who leaked Matt Gaetz’ supposed upcoming non prosecution by the FBI.
        Color me skeptical.

  6. robert harding says:

    One thing (out of many) that I do not understand: why does Trump’s special status keep an FBI investigation from using documents found in the search to look into possible crimes by others?

    What if the FBI has reason to believe, say through Rudy’s phones, that someone other than Trump has been hiding evidence at MAL of crimes committed by Rudy or his associates? Because so much of Cannon’s reasoning relies on Trump’s special standing, how can Cannon keep investigators from interviewing witnesses or showing seized documents to a grand jury for a crime that does not involve Trump?

    Wouldn’t the question of whether privileged material can be used against someone be determined after indictment, and that decision would be based upon who was charged and with what crime?

    If Trump just wants some of his stuff back, doesn’t that happen after the FBI is very sure it doesn’t need it for anything at all?

    It sure seems that there are others doing some criming, not just Trump.

    • Silly but True says:

      Search warrants are not supposed to be broad fishing expeditions; and this one is narrowly tailored as well, based on specific probable cause from NARA referral that Trump mishandled Trump’s records bearing classification markings at Trump’s residence.

      _IF_ FBI has probable cause of other crimes involving others that also took place at MAL, they can secure a warrant based on the associated specifics of those alleged crimes; it would have nothing to do with Trump’s own search warrant and all of the issues currently associated with it.

    • viget says:

      This is an important point in my opinion. I’m not even sure the ultimate target of any 793 violations is even going to be Trump, but rather someone like Kash Patel who probably checked out the docs in the first place, and used the MAL boxes and Trump’s move out of the WH as a means to smuggle them to foreign intelligence services.

      That’s why I think Trump’s lawyers are so keen to have a detailed inventory of the classified docs…they may not themselves actually know what’s there!

  7. Silly but True says:

    The damage will be more pernicious and more fundamental than that, aligning with the overall revolutionary transformative goals of Bannon, and the insidious chaos of Stone.

    Let’s take the “classification” issue. _IF_ Trump is given the avenue pre-indictment / pre-trial to confirm that all of the classified documents are (“in fact”) declassified and the court’s accept this, then the only outcome would be to blow up the entirety of the investigation, its search and its seizure.

    The very first words of the very first sentence of the FBI’s predicating affidavit to Magistrate to get the search authorized states:
    “1. The government is conducting a criminal investigation concerning the impropoer removal and storage of classified information in unauthorized spaces…”

    If the court accepts that “Trump declassified everything,” then it must also accept that the FBI therefore falsely predicated its affidavit before Magistrate Reinhart, and that the search was therefore “not a legal search,” and it must be dismissed. This in itself would undermine faith in the FBI, something that’s been an ongoing fight for the past seven years.

    Further, if the court accepts that “Trump declassified everything,” then it must also accept that NARA’s own actions in referring the matter to the FBI based on a partial understanding of the documents was a likely frivolous escalation of something it could have simply just asked or negotiated with the transition team about. This would undermine faith in NARA, and likely bring focus from a MAGA congress to monkey with legislation that authorizes NARA’s roles and powers relative to POTUS and within Executive Branch; anything it does would likely leave record-keeping worse off. This again, is a general goal of the Bannon/Stone MAGA movement.

    Collectively, the court accepting “Trump declassified everything” would go a long way to further eroding confidence in government, something which aligns with MAGA; “see Deepstate WAS trying to get Trump and he won.” It would make no one happy. A large segment would blame SCOTUS for being partisan hacks that through cronyism protected Trump yet again. A large segment would blame the FBI. A large segment would blame Trump and be dissatisfied that yet again, justice was not served.

    Further, the National Defense Information angle being a separate criminal risk from the classification risk would also be undermined in its prosecution for quite the same way the classification investigation would be. In any argument before the court, Trump would get to claim and conflate the political/policy side of his narrative: “See even the courts agreed with me, there’s nothing sensitive in the things I’m trying to get out to you the public, and in fact the things that Deepstate is trying to persecute me for are the things I’m trying to inform you about — they don’t hate me, they hate you and I’m just in their way.” He would be arguing to the jury on his narrative, not the particulars of espionage law, and there’s possibility his words could be impactful on national defense policy.

    The court accepting “Trump declassified everything” would be a win for the MAGA movement in ways that would undermine faith in government across the board. The sense of justice would be the biggest loser of all. Now, in the case _IF_ he actually did, then who legitimately should be blamed for all of this is not ever anything that would have any meaningful review or national consensus in any case. The left would further lose faith in Judicial, and sense of justice; the right would further lose faith in DoJ and sense of justice. Over half the country would be left with “He got away again,” while the remainder would be left with “they tried to get him again.”

    • Nick Barnes says:

      If the court accepts that “Trump declassified everything,” then it must also accept that the FBI therefore falsely predicated its affidavit before Magistrate Reinhart

      Is that right? Whether or not “Trump declassified everything” is eventually upheld by a court, I don’t think anyone could plausibly argue that the FBI agents didn’t believe, or would reasonably not have believed, that there were classified documents at Mar-a-Lago. The whole “Trump declassified everything” argument didn’t even come up until after the search. At that time, as DOJ have pointed out in their filings, even Trumpworld lawyers were behaving as if the documents with classification markings were in fact classified.So it wasn’t in any way false to say that “the government is conducting a criminal investigation concerning the impropoer removal and storage of classified information in unauthorized spaces”. Was it?

      • Silly but True says:

        The affidavit used to predicate the search warrant is required to affirm the material facts which establish the probable cause for the search and seizure. If the documents were in fact not classified as the affidavit alleged, then a large material fact predicating the warrant was wrong, and this would suggest a problem in FBI’s understanding as it was wrongly affirmed as well as NARA’s referral that should be fixed by administrative or legislated changes to ensure it doesn’t happen again.

        Belief and reliability are a part of the role of affirmation and the Magistrate’s consideration. And if someone believed wrongly, then improvements to the process may be needed.

        The FBI’s belief may serve as an excuse for such an error, but it’s no good outcome if the FBI becomes unreliable in its affirmed beliefs versus actual facts.

      • Shadowalker says:

        “ Is that right? Whether or not “Trump declassified everything” is eventually upheld by a court”

        It wouldn’t, for the very simple reason that the current commander-in-chief can reverse any order that a prior commander-in-chief made.

        Besides declassifying them would not change the reason they were classified in the first place, i.e. damage may/would occur to the nation’s security should the information become readily available to the public (including foreign adversary nations) as a whole. The article III court’s cannot make these assessments because of the separation of powers, since matters of classification for purposes of national security are vested in the article II office with the commander-in-chief designation.

  8. Troutwaxer says:

    Affirming Cannon’s handling of the case would mean overturning much of the current legal system regarding search warrants and classified information. I can’t see the Supreme Court voting for that (except perhaps Thomas.)

  9. Amicus says:

    Unfortunately this post, including the “assurances” statement is correct. That said, it would take a bold reversal for the new 11th Circuit merits panel to break from the court’s prior stay ruling. It was unanimous, clear, hard edged, well-reasoned, and comprehensive. Noticeably absent was any waffling language along the lines of it being a “close call,” or “on balance the factors weigh in favor,” etc.

    The Supreme Court is another thing altogether. Roberts will want none of this, he’s terrified that the Court’s reputational capital is in the toilet and he wants to stop the bleeding. Another significant cross-current is that Trump’s legal arguments run afoul of the unitary executive theory beloved by certain of the brethren. Perhaps Thomas is taking this time to take the temperature of select colleagues. Who knows?

    Assurances, no. But still it seems the greater likelihood that J. Cannon’s tenure over this matter is coming to an end.

    • MB says:

      Agree with what you’re saying here.

      As to the toilet analogy, maybe it’d be more accurate to say Roberts “wants to stop the flushing”…

    • Commentmonger says:

      I have come to believe that they are in this for the grift. It would not surprise me that delays of Trump’s “predicament” only help sustain additional pleas for donations. So an additional week gives them additional donations. It has become so twisted that it can’t just be differences in legal opinions. There isn’t any valid reason to give DOJ a week. The SC already has enough info to make a decision.

      • Ginevra diBenci says:

        Trump has always been in this for the grift. That is why he publicized the FBI search on August 8, which was the proximate cause of all that “civil war” talk the Times suggested was triggered by the “raid” itself. (Their headline characteristically states that as fact.)

        Trump has been fundraising off all this like nobody’s (especially the RNC’s) business. He and his MAGA ilk know (and don’t care) that a “hot” civil war accrues to their highly gated benefit.

        • Jenny says:

          “Trump is a masterful con man, he’s always trying to squeeze a little more juice out of his marks.”
          Rick Wilson

  10. Bizarro Trump says:

    IMO there is a very real chance that the Fed. Soc. is the driving force behind Cannon’s entire course of action to date. They literally have an entire in-house law firm that games out these scenarios. Cannon’s appointment of a SM, the scope of his authority and and her written opinion have created a legal morass of numbingly complex and time consuming legal issues, some of which may ultimately wend their way to SCOTUS (where they will be decided by another arm of the Fed. Soc. law firm.) This almost has to be by design rather than incompetence. For example, having a special master opine on issues related to executive privilege is ludicrous, bordering on impossible. Moreover, once Dearie completes his work, (now kicked back to mid Dec.), Cannon will review his report (ignoring what she doesn’t like and using what she does) and issue yet another opinion, setting in motion a new set of appeals. In the interim DoJ may have their hands tied on the Nat. Sec. and criminal investigations. BTW the shitstink of Fed. Soc. is on the outlier and tortured Nichols opinion regarding 18 U.S.C. § 1512 too. The issues raised by Nichols (as absurd as they are) will most likely end up at SCOTUS at some point. In the interim, his opinion has thrown a lifeline to every J6 current and prospective defendants charged under that statute.

    [FYI – your comment had to be cleared manually because of a typo in your email address and a change in case in your username. I have edited these fields this time but I do not have the time to do this for everyone who fat fingers entries. If your comments do not publish right away, check for typos. Your next comment may otherwise languish in the moderation bin. /~Rayne]

    • Faithdc says:

      The Federalist Society cares about long term conservative takeover. I don’t think they give a damn about helping trump. They will make it happen by pouring $$$$ into elections, voter suppression, and courts. Imagine Cannon hearing an election case. Are we sufficiently terrified now? If trump gets away with this scheme, all this case law will apply to Biden when he leaves the presidency. The Federalist Society sure as hell doesn’t want that.

  11. Frank Probst says:

    I think Judge Dearie is a critical X-factor here, too. He doesn’t want to touch those maybe-mentally-declassified documents with a 10-foot pole. I expect him to do everything possible to keep them away from Trusty, and I think that when push comes to shove, he’s going to resign if he’s ordered to do it.

    • PeterS says:

      From the evidence available so far, there’s only one judge (Cannon) who has an unreasonable view on how the classified documents should be handled. So I’m staying calm, at least on that issue.

  12. Savage Librarian says:

    Some new attorneys to add to the list:

    “Boutique law firm in Miami joins Trump’s legal fight after others steer clear” – By Marc Caputo, 10/6/22

    “Trump’s newly hired lawyer, Chris Kise, has joined the law firm Continental, which is positioning itself to represent certain causes and clients it says most firms won’t touch.”


  13. Doug Kane says:

    Josh Gerstein has reported that the 11th Circuit clerk put out a statement regarding the ‘classified appeals log’ mentioned in the order yesterday setting the schedule for the expedited appeal, saying “The Clerk’s Office maintains several logs for the random assignment of cases to judges. Some logs are specific to subject matter (such as capital cases, petitions to appeal under the Class
    Action Fairness Act, and classified cases). Other logs are administrative (such as for a weekend emergency). Some of these logs, such as those for capital cases and classified appeals, include only active judges.” I don’t know where this statement was released. Presumably, Rosenbaum, Grant, and Brasher, the judges who were on the previous panel, would be among the judges on this classified appeals log. I wonder how many of the other 8 active judges are on that “log”? Presumably Adalberto Jordan would be, since he is the one that signed the order granting the motion to expedite. Anyone known any more about this?

  14. SaltinWound says:

    If DOJ has a choice they’d be fools to charge an Espionage Act case in Florida. Up until now I’ve only seen conjecture that they’d file in DC. Is filing in Florida on the table? Under what circumstances would they have no choice but to file there?

    • emptywheel says:

      Venue is more obvious there. He’s not charged with stealing classified docs. He’s charged with retaining them after being told to give them back. If it were me, I’d charge him JUST for retaining them for the period after 6/3, because it’s cleaner evdientiarily. But that makes FL charging more obvious.

      But smart lawyers think they can get venue in DC easily enough.

      • SaltinWound says:

        Thanks. I hope they can get this out of Florida. Florida and Texas courts seem to have outsized influence. I still don’t understand exactly how a Florida judge killed the nationwide mask mandate on planes.

  15. Thomas says:

    Declassifying the documents does not change the substance or content of the documents or render them personal.

    I’m paraphrasing the Eleventh Circuit. The declassification red herring does not upend an Espionage Act case.

    I appreciate that Dr Wheeler and others have a better handle on how the legal system works, BUT, I like the cut of Jay Bratt’s jib, and I do believe that he will successfully prosecute Trump for espionage, IF the content of those documents merit a prosecution.

    I will say it again: I think WaPo’s source is Trump himself, and I do not believe that the documents are nuclear weapons info.

    Here’s another data point: Who “accidentally leaked” the filter team info? Trump did. And he asked Eric Trump to go on Fox News and express outrage. That’s indicative of the tactics.

    So, WHAT is in those TS/SCI documents? What info is so restricted that only the president or cabinet members (on a need-to-know basis) can access it? That information, reported in the press, I believe. The info IS extremely sensitive national defense information.

    These red herrings and shell games and “leak-against-yourself” con schemes are all beside the point. The misdirection by Cannon and Trump’s criminal accomplices who pretend to be lawyers are all beside the point.

    I have a pretty good guess what some of that info is. Some of it was pulled from the counterintelligence investigation that collected evidence that Trump is a Russian agent.

    Trump tried to erase that info and destroy the custody chain, but he couldn’t be sure that it didn’t exist elsewhere. So he kept it. And he wrote notes to himself, on the documents, to help him remember what lies he was going to use in case the info surfaced from another source.

    There was reporting that Obama seeded counterintelligence info deep inside several agencies to preserve it and to document its subsequent use.

    There was reporting in April 2017, quoting Pompeo as bragging “Those counterintelligence guys report directly to me.” Likely, Pompeo ferreted out counterintelligence info and gave it to Trump and had the custody chain logs destroyed. That’s why Trump says, just days ago, “There’s no chain of custody with these guys.”

    But if the DOJ and the IC now have the documents, can they reverse engineer that process? Yes they can.

    This is just one example. Trump may have decided that he wanted to repeat this process with other information for different purposes. Insurance. Blackmail. Selling secrets.

    But I feel confident that the Russia investigation was the first such attempt to conceal or destroy classified information.

    Much is made of the footnote mentioning the Steele Dossier in the Page FISA affidavits. What ISN’T being discussed? Pages and pages of redacted evidence in those affidavits that are NOT sourced to the Steele Dossier. Go take a look. Never been revealed. What IS that classified info? Was some of it at Trump’s beach resort? I think so.

    • Faithdc says:

      As far as the filter team info, it was Cannon’s staff who mistakenly unsealed it so it showed up on the docket before they caught the mistake and put it under seal again. That’s where it was found. Not some nefarious 12-dimensional chess game by trump.

    • skua says:

      Thomas above provides a explanation for “why classifieds at MAL?”.
      “Trump tried to erase that info and destroy the custody chain, but he couldn’t be sure that it didn’t exist elsewhere. So he kept it. And he wrote notes … on the documents, to help him remember what lies he was going to use in case the info surfaced from another source.”

      I’m not convinced but it looks better than “keepsakes from his WH years”.

      • Thomas says:

        Thanks for the support.

        There’s a lot more evidence that my analysis is correct.

        AFTER Trump gathered the counterintelligence info, what was his next move?
        Discredit the FISA applications.

        Focus on the Steele Dossier footnote.

        Deflect from the other info. If investigators look for that other info, then where is it? Where did it go? They can’t answer those questions. Trump has the documents. The chain of custody logs have disappeared.
        If the info surfaces somewhere, then Trump grabs it, has the custody chain destroyed, rinse repeat.

        Then, after scrubbing the info, he agitates for a review of the FISA applications, focussing on the Steele Dossier, and then amplifies the errors, mistakes, etc and then the other classified info that he holds fades out of history. But why did he keep it?

        Because he could never be certain that copies of it weren’t lurking somewhere, and that not only would it be found out that he is a Russian agent, but that he actively used his powers as president to suppress it, erase it, destroy evidence of it.

        It’s ironic that Trump’s efforts to hide this info is now exposed along with the info.

        Also? His accomplices.

        Another tell: Whoever assisted Trump with this scheme certainly knew that the Steele Dossier contained disinformation. This scheme was crafted to deepsix the intel that Trump was hiding, and shine a spotlight on disinformation that could be used to discredit and even prosecute his critics and anyone else who wasn’t chanting “No collusion.”

        It could be that these documents found at MAL (and others not yet found) are the key to unraveling all of Trump’s crimes. That, and the “Russian Doll” structure of his shell companies, now in the possession of SDNY, thanks to NY AG Letitia James.

    • Thomas says:

      I thought the same thing.
      But, there is a good reason, I believe, that DOJ is not doing that.

      If they arrested him today (I think they could) then yes, the Special Master Review would not stop that and would not keep him out of jail.

      But he could use this “Special Master” scheme to argue, before a judge, that he was unfairly railroaded without due process and that the DOJ made an end run around his rights and he would take that all the way to the Supreme Court, where he believes the indictment would be thrown out.

      So, allowing clown boy and his ridiculous stooge judge Cannon to play out this game will remove that avenue to evading justice.

      Trump will not likely prevail with his current SC appeal because, mainly, Gorsuch is unlikely to see a long term constitutional issue.

      Barrett, Alito, Thomas, Kavanaugh: they would all gladly torpedo this case.

      Justice Roberts and Gorsuch, probably not. They would likely want to shore up the credibility of the court and wait to see if Trump comes back later with a better case.

      All speculation on my part. I admit that. Bear with me.

      The DOJ is very likely to prevail on overturning Cannon on the Special Master order before the Eleventh Circuit, bit probably not before Dearie completes the review.

      Dearie will be considering his report and his rulings when the Eleventh Circuit overturns the whole process. From what I have seen so far, Dearie is likely to publish a report anyway, and not favorably for Trump, but he is not likely to make any rulings, and Cannon won’t be able to do anything further.

      Then the documents go back to DOJ, and they fold that and Dearie’s report into the investigation.

      I think that’s likely to happen before Christmas, and we may see other actions by DOJ in the meantime (like more searches and subpoenas).

      Once we are on the other side of Trump’s shenanigans, DOJ will not only have a stronger case, but they are likely to uncover more crimes.

      All that, and they sideline Trump’s false grievances about not getting due process, and they can pocket all of this fraudulent abuse of the legal system when they are knocking down his appeals of his convictions.

  16. Faithdc says:

    I need some clarification: When the 11th Circuit said Cannon lacked jurisdiction, was it about adjudicating the entire lawsuit? That was before her monstrous Fuck You to the 11th Circuit. Or does it just regard if she TRIES to say Fuck You to the 11th Circuit? Does DOJ’s appeal question trump’s entire rationale for her jurisdiction? I’m confused.

    • emptywheel says:

      Effectively, yes. Once she determined there had been no gross abuse of Trump’s rights, it should have ended her consideration of taking the case.

      • Ginevra diBenci says:

        It seemed like the 11th circuit was saying that once everyone agrees the search was legal, and lawfully predicated (which Trump hasn’t disputed), his argument has no basis; I understood them as affirming that even if this were an appropriate instance for raising 41(g), the Richey arguments would be overcome at the start by the manifest legality of the search.

        Plus, Cannon raised 41(g) herself, elevating if from a hypothetical injury to the basis of her ruling. Clever? Maybe, but we all saw what she did, and that includes the 11th circuit judges who tried to explain why it does (should) not carry legal weight.

  17. Arteberry says:

    I agree that Cannon will do something to crimp the government’s prosecution of Trump, if the 11th Cir. actually allows her to proceed with this case. However, I think she would be more likely to choose the executive privilege angle than the declassification angle. NB: both angles are legally preposterous. But, as you point out, the object is to make a record that helps the Trump defense. Trump still refuses to claim on the record that he declassified anything. The executive privilege claim, on the other hand, is definitely coming as soon as Trump files his privilege claims and designations on all the non-classified documents. Trump’s Supreme Court move is to get the classified documents—the documents that will look the worst for Trump at trial—before Dearie so that Trump can also slap an executive privilege claim on them. The executive privilege claim, if accepted by Cannon, would not be sufficient to get the documents returned to Trump but would be enough to impair future investigation. And Cannon’s acceptance might, as you describe, help create a record of the defendant’s “honest misunderstanding” about what his rights were.

    • Thomas says:

      I disagree.

      Trump’s lawyers will not assert ANYTHING about any of these documents.

      In fact, they already slipped up (source:Lawrence O’Donnell) when they claimed in the SC appeal that Trump had a possessory interest in the classified documents.

      In fact, Trump cannot have a possessory interest in those documents (Eleventh Circuit says)

      Trump is gambling that Thomas will give him an individual ruling on the shadow docket establishing a new unconstitutional executive power for ex-presidents!

      There are all kinds of reasons why Thomas can’t make that ruling. If he does make it, he makes an argument for his recusal on the matter. Either with recusal or without it, that ruling will not prevail with the court.

      Aside from that, making a claim of possessory interest in ANY of the documents is an admission that Trump committed crimes.

      Therefore, Trump’s lawyers will not make ANY claims about those documents under review by Dearie. They will sit there, day after day, trying to figure out how they can drag out the review without making any claims, and appealing any ruling by Dearie to Cannon, and especially trying to generate rulings by Cannon that will force the DOJ to appeal to the Eleventh Circuit.

      There’s no legitimate claim that Trump’s lawyers will make about those documents. They can’t make false claims either.

      This is the legal equivalent of Lewis Carroll’s “Caucus Race,” where the participants just run around in circles without any purpose or definitive end.

      It is solely an abusive delay tactic and Judge Cannon is an accomplice in this obvious obstruction of justice.

      Cannon and Trump probably both believe that delaying the case until Trump acquires some kind of position of power (Speaker of the House) and is able to manufacture a constitutional crisis to evade justice, is the end game.

    • Thomas says:

      One more thing.

      Watch Trump’s lawyer s suddenly change their tune and ask for the review to be speeded up!

      They will want Dearie and Cannon to make rulings before the Eleventh Circuit overturns the Special Master order.

      But that won’t happen. The review will take at least 25 working days, without any delays. Five weeks. If they start next week, as they are scheduled to do, then they will complete it Nov 14th.

      Then both sides will get a week to submit their logs. Cannon ordered that process instead of logging on a rolling basis.

      That means Dearie will be considering his report of the review and his rulings while the Eleventh Circuit is considering whether to overturn the whole process.

      Cannon can’t make a ruling on the review until Dearie completes it. She ordered a process that completes in late Jan or late Feb of next year.

      Will she order Dearie to speed up his review in order to make rulings on it before the Eleventh Circuit overturns the order? I would bet on it.

      Will Dearie comply?
      I DOUBT IT. In fact, he could run out the clock and then resign, forcing Cannon to appoint another Special Master to complete the review before the Eleventh Circuit overturns her.
      And then she runs out of time, and is also exposed as a criminal accomplice.
      Also, the Republicans are going to lose the election very badly, and watch how much Trump freaks out when that happens.

      • earlofhuntingdon says:

        Cannon does not understand her role as passively as you describe it. She can overrule or step in to make decisions de novo that she has nominally delegated to Dearie at any time. She’s already done that.

  18. Scott Rose says:

    Another way to consider this situation is that Trump is treating the matter more as a political than legal affair.

    Specifically, he is doing what a person in his position and under investigation would do to raise money from gullible fools, and NOT what a person in his position and under investigation would do if he wanted the best long-term chances in court.

    Trump thinks he can get out of this by politicking his way through it, including by inciting to mass violence against the whole government, but, he is wrong.

    And, what makes Trump’s conduct especially foolish is that while he does have a lot of gullible donors, his conduct is hurting him and other Republican candidates politically with the kinds of voters who gave Democrats control of the Senate in 2020.

    Additionally, although reactionaries used Trump to move towards the composition of the Supreme Court they most desired, Trump’s continued presence on the scene makes it more difficult for those reactionaries to continue obtaining what they want through the court. For example, any of the Republican primary candidates who ran against Herschel Walker would today have a better chance against Warnick than does Walker in the general election. (The same holds true for the Republicans who ran against Oz in the PA Republican primary.) So the Republicans currently on the Supreme Court have political motivations to not help Trump. Besides that, there is no earth-shatteringly important, but undecided legal matter that they need to decide regarding Dearie’s review of the classified documents Trump stole.

    Moreover, DOJ/FBI know all kinds of things about this investigation that the public does not know. And, what DOJ/FBI knows, but we don’t, makes prognosticating in the matter a lot shakier. The potential for surprises that work against Trump, is in my opinion much greater than the potential for surprises that work in Trump’s favor.

  19. Peterr says:

    Trump thinks he can get out of this by politicking his way through it, including by inciting to mass violence against the whole government, but, he is wrong.

    Trump believes that by ratcheting up the political storms, he can get the DOJ to back down out of fear that they/Biden will get tarred as politicizing the judicial system.

    Of course, the DOJ realizes that Trump is going to try to tar them like that no matter what they do. From the DOJs POV, then, they seem to have calculated that as long as they are going to get hit like that, they might as well do their job and make him pay.

    This is likely confusing to Trump, as damn near no one has ever stood up to him over a substantive matter like this before.

  20. Tom-1812 says:

    Donald Trump reminds me of the mischievous humanoid pastry figure in the well-known fairy tale about the Gingerbread Man.

    “Run, run, run, as fast as you can!
    You can’t catch me, I’m the Gingerbread Man!”

    But we all know what happened to him.

  21. Bay State Librul says:

    Want a doobie?
    I love Biden — giving pardons for
    Marijuana users.
    This will spaz out the fucking GOP

  22. J R in WV says:

    Best mass pardon since Jimmy Carter pardoned all the draft resisters from the Vietnam war era. My dad told me, while I was debating what to do about my impending draft notice, that he had friends in Canada, if I wanted to go there. Amazing as my dad was a stalwart Republican, although that was way different in 1970 than it is today.

    I enlisted in the Navy to avoid being drafted into the Marines/Army and sent to the swamps of SE Asia. So Jimmy’s pardon was meaningful to me. That could have been me, suddenly allowed back into the country.

    Joe, you keep on doing what you are doing!!!

  23. skua says:

    The FBI raid on MAL (drug labs get raided, bikie gangs get raid, Trump gets raided) has worked as a loyalty test.
    Reinhart goes for legal precedent.
    Cannon goes for Trump.
    First 11th Circuit panel went for precendent.
    SCOTUS can protect Trump.

    I suspect that most of the fascistic among them would rather have an authoritarian POTUS who at least appears to be competent to intelligent people and, in public, US-Christian-conservative ethical. If so we’ll miss out this time on more SCOTUS legal fantasizing.

  24. xy xy says:

    Good grief, According to the Social Security Administration, the life expectancy for a 76 year old male is an additional 10.53 years, for a total life expectancy of 86.53 years.
    I can’t stand another 10 1/2 years of this crap.

    • Blaze Trailer says:

      Not to not rain on your rained out parade; if you were say a cat you’d have 42 more years, and a dog 60. Now if you’re counting in Trump years – you know where “every week is like a year!”, well needless to say that’s a butt ton of years.
      Conclusion: Your getting off easy.

    • Elvishasleftthebuilding says:

      Even worse, when Trump is 86 – he will have a life expectancy of 6.5 years – which will mean he will be 93 . .. and then, when he is 93, he will have a life expectancy of another 3.25 years – and then when he is 96, his life expectancy will be 2.6 years — in other words, he will never die and he will continue to be able to draw out the court proceedings. And yes indeed, it would be even worse if you were a cat or a dog. But it would be really bad if Trump were a land tortoise (he does have a bit of a tortoisey face however).

  25. Badger Robert says:

    As of today:
    1 The Supreme Court is extremely unlikely to limit the governments uses of the classified documents.
    2. Trump has access to electronic copies of the non classified documents.
    3. There is a process in place to resolve privilege claims which is with the range of normal for a high profile investigation.
    There is no emergency.
    Which may give the 11th Circuit an opportunity to dismiss the entire case, because the Sp Ct is not interested.

    • nedu says:


      • Archive.org copy of Supreme Court docket for 22A283.

      [Mods–please consider whether this one’s worth keeping here. On one hand, once you have the case num, which I already posted above, finding a copy of a Supreme Court docket, even years later, is pro’lly always gonna be patty-cake. Even if the courthouse burns down.

      On the other hand, I posted a link to a copy of the order PDF, almost without thinking, since that’s the one primary source that’s news now. That PDF’s linked from the better news stories. But if I was looking backwards, say after web reorgs rotted all the urls, the single primary source that I’d be happiest to see would be–that docket.

      Thinking about it with just a teensy bit more time, if I could redo my earlier post above, I’d substitute the microtext and hyperlink for the third bullet line.]

      • Ginevra diBenci says:

        Thanks for all these. I always go straight to SCOTUS docket as soon as I know something’s been filed. It’s very easy.

        (Unlike providing any sort of direct comment or feedback to the Court. You will die trying to do that.)

  26. joeff53 says:

    With the benefit of hindsight:
    1. Uncle Thomas could have flushed Trump’s application on his lonesome, but chose not to do so. Another profile in courage. But it did show that even the diehards on the the Court wouldn’t touch this stinker.
    2. With not 1 but 2 Trump appointees on the 11th Cir. voting to stay Judge Loose Cannon’s order, and given the whiplash-inducing speed with which the stay issued, the odds of the US prevailing in its appeal are overwhelming. (Note that T’s lawyers could only bring themselves to argue in the Scotus application that 11th Cir. lacked appellate jurisdiction–nada re merits.).
    So long, Loose Cannon, it’s been good ta know ya. Stand not upon the order of your going ….

    • bmaz says:

      Who in the world is “Uncle Thomas”? If that is a reference to Clarence Thomas, please never return here again with that racist garbage.

  27. Nick Barnes says:

    There doesn’t seem to be a post discussing the DOJ’s appeal to the 11th circuit. Any opinions? I think it’s a really fine argument. I was already sceptical that they would bend to Trump on this; now I’m even more so.

  28. Thorvold says:

    Since the Government has provided Notice of Completion to Trump on Oct 12 (ECF 144), that has moved Trump’s date for designations up to November 2. This will give almost a week prior to the election for analysis of which documents Trump is trying to hide, and his justifications for them.

    – By October 14: DOJ provides notice of completion that Trump has received all seized documents – done on Oct 12
    – 21 days after notice of completion (November 4): Trump provides designations to DOJ – moved up to Nov 2
    – November 8: Election Day

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