11th Circuit Showdown: The Fight to Get the Documents to Charge against Trump

A 2PM Eastern today, an 11th Circuit panel including William Pryor, Britt Grant, and Andrew Brasher will consider DOJ’s expedited motion to overturn Judge Aileen Cannon’s decision to appoint a Special Master. Oral arguments should be available here. The briefs are here:

Grant and Brasher were on the panel that already held that Cannon erred in intervening given that there was no evidence of callous disregard for Trump’s rights, so I fancy DOJ’s chances. That said, there’s no predicting how Pryor would rule, and if he were to support Trump’s support for Tom Fitton’s erroneous theory that there was no basis to question a President’s designations of something as a personal document, it might cause difficulties for an eventual prosecution.

For the reasons I laid out here, the decision the 11th Circuit makes, and how quickly they make it, will dictate how quickly DOJ could charge the stolen document case. DOJ likely has already discussed what documents they could charge without creating more national security damage. But particularly for any document that mixes classified documents with unclassified ones, DOJ first has to ensure possession of the documents they would charge before indicting (or even using the documents in interviews with Trump’s associates).

Two documents that are likely to be charged also include unclassified information:

  • The 11-page document compiling a confidential document, a secret document, messages (all post-dating Trump’s presidency) from a pollster, a religious leader, and a book author, as well as a document over which Trump has claimed privilege. This document would show that someone in Trump’s office accessed classified documents after leaving the White House and may show Trump using classified documents for his own benefit. The document was stored in a desk drawer in Trump’s office.
  • The packet including clemency for Roger Stone, which includes a one-page and a two-page document, one of which (presumably the information on the French President) is classified secret. This was also stored in a drawer in Trump’s office, though not necessarily the same one as the compilation. There’s no reason for Trump to include an official pardon in his desk drawer, but the tie between the Stone clemency and Macron may well explain why he did so. Given how Stone insinuated he would harm Trump if he wasn’t pardoned, the reasons Trump kept the document close at hand are likely to be quite interesting.

Trump’s team has been aggressively trying to prevent DOJ from keeping possession of these documents, by claiming that the first packet is both personal, attorney-client, and Executive privileged, and by claiming that other pardon packets can be Trump’s personal possession. It’s highly likely that Raymond Dearie will rule for DOJ on both those disputes. But if and when he does, Trump would object and Aileen Cannon would get to consider it anew.

That would make these documents unavailable for investigative purposes until after the new year. Whereas, if the 11th Circuit rules for DOJ, the government would be able to present these to a grand jury within weeks (assuming a quick decision and SCOTUS declining to review the decision, as happened with the last decision).

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15 replies
  1. Rugger_9 says:

    It would appear to me that the case is clear and straightforward in terms of law and the obligations.

    However, the wild card here is the attention Individual-1 paid to stack the 11th Circuit and SCOTUS with judicial protection. Cannon’s rulings are proof of this strategy. As EW noted in the post 2 out of 3 on the panel already said no to the campaign. SCOTUS may review this time if the reactionaries grasp that Individual-1’s failure means significant risks to their party. The prospect of a GOP House would tell me they will because it’s a short delay to January which might be less obvious politically.

  2. Cosmo Le Cat says:

    I am intrigued by the EW article from Nov 18, 2022,which stresses the importance of getting the 11th Circuit to rule in the USA’s favor so the DOJ can use certain documents while deposing Molly Michael in the grand jury. That article referred to “a mini smoking gun: the document that includes a Secret document, a Confidential document, messages from a pollster, a religious leader, and a book author, as well as one page … over which Trump is claiming attorney-client privilege.” The article said if Ms. Michael testifies that she accessed these, then the claimed privilege would have been waived if she accessed that document. I’m also hoping forensics reveals her fingerprints.

    Question: Will the hearing be public?

  3. Tetman Callis says:

    I listened to the hearing. The court did not sound to me to be sympathetic to the former president’s position. I may be rushing to that judgment, but it didn’t seem the breeze was blowing in his favor.

    • Steve13209 says:

      If it wasn’t for Trusty speaking way past his time limit, the hearing would have been over in 20 minutes. I don’t think that bodes well for Trump, but who knows.

  4. Callender says:

    The hearing did not go well for team Trump. It was clear Trusty was on “shifting sands,” as the government prosecutor stated. Government did a good job, in this layman’s opinion.

  5. Linda says:

    Don’t quote me on this but I don’t think the public will be irreparably harmed if the government can’t access the classified documents and other documents because I believe nothing prevents the intelligence arm of the FBI and other agencies from accessing the documents for intelligence purposes which they fail to mention. I’m surprised the former “President of the United States” isn’t aware of this process. He probably should have paid attention to his briefings!

    [Welcome back to emptywheel. Please choose and use a unique username with a minimum of 8 letters. We are moving to a new minimum standard to support community security. You’ve now commented as “Linda” and “Reed”; stick with your chosen name or end up stuck in perma-moderation. Thanks. /~Rayne]

    • Linda Dawn says:

      Sorry I just saw this!
      Don’t quote me on this but I don’t think the public will be irreparably harmed if the government can’t access the classified documents and other documents because I believe nothing prevents the intelligence arm of the FBI and other agencies from accessing the documents for intelligence purposes which they fail to mention. I’m surprised the former “President of the United States” isn’t aware of this process. He probably should have paid attention to his briefings!

      [Thanks for updating your username to meet the 8 letter minimum. /~Rayne]

  6. Zinsky123 says:

    Wow! I guess I missed the earlier EW post where Roger Stone may have conspired with Guccifer 2.0 from the Russian GRU to hack former French president Emmanuel Macron’s e-mail or other on-line accounts? That is mind-blowing! And then Stone may have threatened Trump’s life?? Whoa. The shit is getting real, here folks, Eagerly awaiting to see how this all plays out over historical time….

    Thank you again.

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