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Cause the Harm, and Then Say Nothing: Trump Has Had Aileen Cannon’s Proof of His Injury for a Week and Said Nothing

As I have repeatedly laid out, to intervene (improperly, the 11th Circuit has ruled) in the search of Trump’s home, Aileen Cannon created an injury, and then intervened to fix it.

When DOJ asked for permission on August 30 to share with Trump the potentially privileged documents separated out by the filter team, she prohibited them from doing so. She wanted to deal with this all “holistically.” Then, in all her subsequent rulings in this case, she pointed to the fact that Trump didn’t have possession or insight into those privileged documents as one of the only harms suffered by the seizure of the documents at his home.

[T]wenty days ago, DOJ asked for permission to share the items they had determined to be potentially privileged with Trump’s lawyers so they could begin to resolve those issues. Twenty days!!

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

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

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

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

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

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

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

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

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

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

On September 16, the day after her order, DOJ repaired that alleged injury. As they explained in their filing before Raymond Dearie, they provided this material to Trump the day after Judge Cannon’s order.

With respect to the Filter Materials, and consistent with the Appointment Order, on September 16, 2022, the Privilege Review Team provided Bates-stamped copies of the Filter Materials, as well as a list of the materials with short descriptions and Bates ranges, to Plaintiff’s Counsel.

Trump has in hand the basis of Cannon’s claim DOJ accessed materials improperly. Trump has in hand the materials pertaining to medical, tax, and accounting matters that formed the basis of Cannon’s claim DOJ had seized personal material. Trump has in hand materials that would reflect DOJ’s filter protocol.

Nevertheless, Trump has said nothing about what’s in those materials.

By the time Trump submitted his proposed topics to Dearie on September 19, Trump had had those documents for at least 48 hours. Nevertheless, he asked for two more weeks to make any privilege determinations over them — until after they had first seen the classified documents.

Plaintiff to create privilege log (with basis) for Exh. A documents

By the time Trump submitted his response to the 11th Circuit, Trump had had at least three days to review that material. Nevertheless, in his response, he still claimed to be uncertain over whether those really were attorney-client privileged.

The material seized from President Trump’s home includes not only “personal effects without evidentiary value” but also approximately five hundred pages of material that is likely subject to attorney-client privilege, as well as medical documents, and tax and accounting information. [my emphasis]

Trump has now had those documents — 64 sets of documents, amounting to 520 pages — for almost a week.

Importantly, since Tuesday, a proposed protective order has been before Judge Cannon, but she has taken no action. Which is to say, for almost a week, Trump has had those potentially privileged documents in hand, without any restrictions from Cannon on whether Trump could speak of them publicly.

Relatedly, Cannon has still not acted on DOJ’s September 8 request that she unseal the filter team’s status report, from which she drew her claim that some of these potentially privileged documents pertained to Trump’s personal medical, tax, and accounting issues, rather than (as I suggested they might pertain to) discussions with government lawyers about legal action pertaining to things like his COVID diagnosis, his challenge to various Mazars subpoenas, and matters pertaining to the Old Post Office building. Cannon has not let the rest of us see out of what discussion she manufactured that harm.

Trump’s lawyers have had access to the filter status report for over three weeks. Trump’s team has had those potentially privileged materials for a week.

And neither Trump nor his lawyers has said anything about the grave harm done by the seizure of those documents.

Trump has had the ability for a week to tell us all about the harm on which Cannon hung her intervention. He even had that material — with no protective order! — when he wailed about his victimhood with Sean Hannity. And he has been silent about the core imagined harm that Cannon used to intervene.

Go to emptywheel resource page on Trump Espionage Investigation.

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.

DOJ Raises Prospect that Trump Continues to Obstruct Investigation, Including of Empty Folders

DOJ submitted its reply in its request for the 11th Circuit to stay parts of Aileen Cannon’s order pertaining to documents marked classified. The matter is fully briefed, so the 11 Circuit could rule at any time.

There’s little that’s new in the reply, except for DOJ’s response to Trump’s claim that the 11th Circuit cannot hear an interlocutory appeal as to whether DOJ has to share the classified files with Judge Raymond Dearie and Trump’s lawyers. The government cites three bases for appeal: a claim that they are appealing Cannon’s initial order on September 5 stating she would appoint a Special Master, an assertion that an order to share classified information would be appealable by itself, and if all that fails, a writ of mandamus.

2 If the Court harbors any doubts about its jurisdiction over portions of the September 5 order, it should construe the government’s appeal and stay motion as a petition for a writ of mandamus with respect to those portions and grant the petition. See SuarezValdez v. Shearson Leahman/American Express, Inc., 858 F.2d 648, 649 (11th Cir. 1988).

This jurisdictional dispute is, in my opinion, getting too little attention, because it’s one way Trump could succeed even though all the facts are against him. That said, as the government suggested, they believe they could separately appeal the order to share information (and so they could just turn around and file another appeal to address that order). Moreover, in yesterday’s hearing, Dearie indicated that, absent any affirmative claim that Trump has declassified any documents, he would resolve that issue without looking at the documents. (See also Adam Klasfeld’s report on the hearing.)

DOJ also points to Trump’s proposed topics for yesterday’s hearing to note that he refuses to say that he declassified any of the documents at issue (and that he’s already seeking to draw out this process).

Plaintiff again implies that he could have declassified the records before leaving office. As before, however, Plaintiff conspicuously fails to represent, much less show, that he actually took that step. And Plaintiff is now resisting the special master’s proposal that he identify any records he claims to have declassified and substantiate those claims with evidence. D.E. 97 at 2-3.

[snip]

To the contrary, after persuading the district court to grant injunctive relief and appoint a special master to adjudicate purportedly “disputed issues” about the records’ status, A6-A7, Plaintiff has now reversed course: In response to the special master’s invitation to identify any records he claims to have declassified and offer evidence to support such claims, Plaintiff objected to “disclos[ing] specific information regarding declassification to the Court and to the Government.” D.E. 97 at 2.

The timing of these filings serves the government’s case well, because Trump is refusing to make the kind of affirmative claims that a plaintiff would need to make for relief (though with another day, DOJ could have relied upon a transcript of the Dearie hearing as well, in which Jim Trusty asserted that with his Top Secret — but not SCI — clearance he should not be denied the Need to Know to access the documents).

The ease with which DOJ rebutted Trump’s factual claims is downright funny in places (or would be, if not for the possibility that some nutjob panel on the 11th won’t see the humor). For example, DOJ noted what I did — Trump invoked notes he had written on documents to claim Executive Privilege over some of the documents with classification marks. But those were documents turned over in June, not documents seized in August.

Indeed, except for a brief footnote, his response does not mention executive privilege at all. And the footnote states only that other classified documents recovered before the search contained Plaintiff’s handwritten notes and that those notes “could” contain privileged information. Resp. 13 n.5; see A73. But the question is not whether the records at issue here might contain material that in other circumstances could give rise to valid claims of executive privilege against disclosure to Congress or the public. Instead, it is whether Plaintiff can assert the privilege to prevent the Executive Branch itself from reviewing records that are central to its investigation.

DOJ doesn’t note here that these were documents turned over in response to a subpoena, but elsewhere, it notes that he didn’t raise such privilege claims when he turned over the records.

Plaintiff should not be heard to assert a privilege that he failed to raise in response to a grand-jury subpoena.

In other words, Trump is relying on documents that he turned over with no privilege claim to suggest he might withhold documents based on an Executive Privilege claim.

DOJ similarly notes that Trump pointed to a portion of the seized materials he might own as his basis for a claim DOJ shouldn’t have access to files he cannot own.

Plaintiff asserts (at 10) that he owns other seized evidence, such as “personal effects.” He may well have standing to seek return of that “portion” of the seized evidence. United States v. Melquiades, 394 Fed. Appx. 578, 584 (11th Cir. 2010). But he cites no authority supporting a claim for return of records that do not belong to him.

Both these areas are where Trump is stuck trying to make Cannon’s gimmicks to justify intervening hold up under scrutiny.

I’m most interested in how DOJ repeats something it has already said. It asserted that it may need to use additional search warrants to hunt down  any files disclosed to others.

As the government explained—and as supported by a sworn declaration from the Assistant Director for the FBI’s Counterintelligence Division—the Intelligence Community’s (IC’s) classification review and national-security assessment cannot uncover the full set of facts needed to understand which if any records bearing classification markings were disclosed, to whom, and in what circumstances. Mot. 18; A41-A42. The FBI has a critical role in using criminal investigative tools such as witness interviews, subpoenas, and search warrants in pursuit of these facts. A42. The injunction bars the FBI from using the seized records bearing classification markings to do just that. Plaintiff asserts that the government has shown only “that it would be easier . . . to conduct the criminal investigation and national security assessment in tandem.” Resp. 17. But the injunction prohibits DOJ and the FBI from taking these investigative steps unless they are “inextricable” from what the court referred to as the IC’s “Security Assessments,” A11-A12—a standard that the government must discern on pain of contempt.

Plaintiff next dismisses the government’s national-security concerns as “hypothetical.” Resp. 17 (citing A11). But the injunction is preventing the government from taking some of the steps necessary to determine whether those concerns have or may become a reality. Moreover, Plaintiff fails to address the harms caused by the injunction’s interference in the expeditious administration of the criminal laws, and by the possibility that the government’s law-enforcement efforts will be obstructed (or perhaps further obstructed). Mot. 19-20. Plaintiff states only that the injunction will last for a “short period,” Resp. 19. At the same time, Plaintiff is already attempting to delay proceedings before the special master. See D.E. 97 at 1-2 (seeking to extend deadlines and set hearings “on any Rule 41 or related filings” in “Late November”). [my emphasis]

As noted, DOJ made this argument — relying on Alan Kohler’s declaration, the only sworn declaration in the docket — in its motion for a stay before Cannon. But when they suggested that Trump may have leaked documents in their initial filing before the 11th, they only mentioned compulsory process, not warrants specifically.

For example, the court’s injunction bars the government from “using the content of the documents to conduct witness interviews.” A9. The injunction also appears to bar the FBI and DOJ from further reviewing the records to discern any patterns in the types of records that were retained, which could lead to identification of other records still missing. See A42 (describing recovery of “empty folders with ‘classified’ banners”). And the injunction would prohibit the government from using any aspect of the seized records’ contents to support the use of compulsory process to locate any additional records.

This is all couched in the language of hypothetical possibilities. DOJ is not saying that they currently have plans to execute further warrants in search of the documents Trump stole and, possibly, leaked to others.

But they are suggesting that may be a step they would take — before such time as the Special Master process ends in November — to try to hunt down the contents that used to be in those empty folders or other files Trump leaked to people not cleared to have them.

Christina Bobb, whom (according to the NYT) investigators already asked to interview, amended the declaration that Evan Corcoran wrote, possibly to limit her own certification to files still at Mar-a-Lago. If DOJ has since learned why that declaration did not incorporate all documents in Trump’s possession — something that has been a focus for weeks — the injunction really might be preventing further action, including search warrants to get them back.

Go to emptywheel resource page on Trump Espionage Investigation.

Trump Sweeps Evidence of Obstruction under the Appellate Rug

Trump submitted his response to DOJ’s motion for a stay of Judge Cannon’s injunction and one part of her order appointing Dearie. To help show what the two sides have done, I want to compare the structures and content/scope arguments, which I’ve done below.

Several things stick out.

First, Trump — in the form of his competent appellate lawyer, Chris Kise — spent almost a quarter of their response addressing an appellate issue: whether DOJ can move for a stay of the part of the Special Master order requiring a review of the documents marked as classified. This part of the filing is competent, larded with precedent (the government’s primary precedent, unsurprisingly, is US v Nixon). I’m not well-versed enough in appellate issues to assess this argument (I think it doesn’t adequately account for the posture of DOJ’s appeal). So I’ll leave it out there for smarter people to address.

The two sides are telling a very different history. Trump has simply ignored everything that preceded August 8 — as well as the basis for the Espionage and obstruction investigations into him — to suggest his personal items and classified records were seized out of the blue on August 8. DOJ, of course, tells the story of his extended obstruction before that.

Because the government doesn’t deal with the public harm in a separate section from the one in it which it deals with the government interest in national security, Trump suggests the government conflates the two. Trump, meanwhile, suggests he still has a say in what is good for national security. Underlying all this is who gets to decide what is the public good, and whether DOJ’s claims of national security harm (plus the criminal investigation) get there by themself.

Aside from the appellate issue, Trump’s argument is a moving target, at one point treating Cannon’s order as she granted it (to find possessory interest in the potentially privileged material Trump has had in hand for 4 days), in other places ignoring the government’s more bracketed argument. Nowhere does Trump address the government’s argument that even if the documents are declassified, they are still evidence in a criminal investigation into obstruction and still necessary for national security purposes. In short, Trump largely addresses Cannon’s larger order, not DOJ’s much more circumscribed request.

Update: Here is DOJ’s reply, which I’ll address later on Wednesday.

Go to emptywheel resource page on Trump Espionage Investigation.


DOJ motion

Intro and Summary

Two weeks after a search, Trump asked for a special master and a stay. The government thinks the ruling was problematic for a bunch of reasons, but is only asking for a stay of the most problematic parts involving documents marked classified.

A. Background

This spans from Trump’s refusal to return documents to NARA, the criminal referral, the June 3 meeting, and the search warrant.

B. Proceedings below

This was brought on equitable jurisdiction, which requires exceptional circumstances. It notes that Cannon did not resolve the question of whether a former President can prohibit the current Executive from reviewing their own documents.

The government is appealing only with respect to records bearing classified markings. Cannon did not address the issue that there is no way Trump owns these documents

Then Cannon ordered the government to share classified documents with Dearie and Trump’s lawyers.

Argument

I. The government is likely to succeed on the merits

A. The court erred by exercising jurisdiction as to records bearing classification marks

  1. Trump lacks standing
  2. Cannon’s exercise of equitable jurisdiction cannot extend to these records under Richey
  3. The PRA doesn’t apply to returning records, plus the reason these aren’t accessible to Trump is because he failed to comply with PRA

B. Records bearing classification marks aren’t subject to any plausible claim of privilege

  1. Executive privilege exists for the benefit of the Republic
  2. Any claim of privilege by a former against the incumbent would fail with regards to records bearing classified markings
  3. Trump declined to invoke privilege when served with a subpoena

C. No factual dispute justifies Cannon’s order with regards to records bearing classified marks

  1. Trump doesn’t dispute the government recovered records bearing classification marks
  2. Even if Trump claimed he declassified these, they were still subject to the subpoena, plus the claim they might be “personal” means he can’t invoke privilege

II. The government and the public is irreparably harmed

A. By enjoining the investigation, Cannon’s order prevents the government from protecting national security

B. The injunction unduly interferes with a criminal investigation

C. Disclosure of records to the Special Master and plaintiff’s counsel would jeopardize national security

III. A partial stay would not harm Trump

DOJ has already reviewed these, and the only harm that might come is the investigation into him, which is not a cognizable harm.

Trump response

I. Summary and argument

The investigation of Trump is unprecedented. Having failed to convince Cannon to stay her order, the government appealed. She made no error.

II. Factual background

The government conducted a search and to protect Trump’s interest, Trump asked for a third party review. The government enjoined further criminal investigation but not national security review. Cannon appointed Dearie, who has a lot of experience.

The government sought a stay and Cannon denied it. Dearie has a lot of experience. The government sought a stay.

III. Standard of review

  1. Likely to prevail
  2. Irreparable harm
  3. Trump will suffer no substantial harm
  4. The public interest will be served

A. Standard of review — injunction

Requires clear abuse of discretion.

B. Standard of review — appointment of Special Master

Abuse of discretion, but not on interlocutory appeal.

IV. Argument

A. Cannon properly temporarily enjoined the government because she didn’t enjoin the national security review.

  1. The government misconstrues the standard for Rule 41(g) review [This is not a Rule 41(g) review, and Trump doesn’t address anything but the privileged material]
  2. The government hasn’t proven the documents are classified [The government’s argument holds even if the documents are only marked classified]
  3. Trump has a possessory interest in Presidential Records [which they establish because he has access, but not possession of]
  4. The government cannot say it will be irreparably harmed because Cannon disagreed with the sworn declaration saying that the investigation must be part of the national security review
  5. Trump and the public would be harmed by a stay [without addressing the public need or the classification issue]

B. The government’s motion for a stay amounts to an appeal of the Special Master appointment which is not appealable on an interlocutory basis.

Trump Wants Two Weeks to Review 64 Documents; DOJ Expects Review of 500 Documents a Day

Yesterday, Judge Raymond Dearie submitted his draft work order to the two sides in the Trump Special Master review and then they responded (DOJ; Trump). Dearie didn’t release his draft publicly but Trump’s wails about it hint at some of its contents.

As a number of people have noted, Trump objects that Dearie has set a deadline for Trump’s initial designation of materials by October 7, thereby allowing the debate over the seized materials to end by November 30. But Trump wants to ignore that there’s going to be an extended debate about this and clearly would like to extend this past Judge Aileen Cannon’s November 30 deadline.

The District Court’s order indicates a presumptive end-date of November 30, 2022. The proposed calendar, circulated today to the parties only, compresses the entirety of the inspection and labeling process to be completed by October 7, 2022.

To be fair to Trump, the government’s plan seems to envision this process taking an extra week, until October 15 or so.

Trump wails even more shrilly about the fact that Dearie first asked why any Rule 41(g) litigation would happen in this Special Master proceeding rather than the docket where the warrant was issued and then asked for a list of documents Trump had declassified.

[W]e are concerned that it contemplates resolving issues that were not raised by Judge Cannon in her order, her order denying the stay, or oral argument. Specifically, Judge Cannon was aware of the likelihood of eventual Rule 41(g) litigation and established a process by which the Special Master would evaluate any such claims before reporting and recommending to the Court. While the Plaintiff is, of course, willing to brief anything ordered by the Court under the auspices of the Special Master, we are concerned that the Draft Plan directs the Plaintiff to address whether Rule 41(g) litigation should be litigated under Case No. 9:22-MJ-08332-BER. The Plaintiff respectfully sees no indication the District Court planned to carve out related litigation for a merits determination by the issuing magistrate for the warrant in question. Most importantly, none of the District Court’s Orders have ever indicated that this was even a consideration.

Similarly, the Draft Plan requires that the Plaintiff disclose specific information regarding declassification to the Court and to the Government. We respectfully submit that the time and place for affidavits or declarations would be in connection with a Rule 41 motion that specifically alleges declassification as a component of its argument for return of property. Otherwise, the Special Master process will have forced the Plaintiff to fully and specifically disclose a defense to the merits of any subsequent indictment without such a requirement being evident in the District Court’s order.

Trump’s response to this is telling. He refuses to reveal which documents he declassified because (he claims — remember none of his lawyers are NatSec lawyers) it would be a defense to the merits of any subsequent indictment.

That ignores, of course, the obstruction statute, which asked for documents marked classified, not classified documents. But it’s also a confession that Trump’s lawyers don’t understand how classification works. If these documents were declassified, there would need to be a record.

This effort is significantly an attempt, pre-indictment, to make an argument about the classification status of the documents. If Cannon were to treat Trump’s claims of declassification seriously, for example (and everything we’ve seen from here says she would happily do so to help Trump out of his legal jam), it would make it far harder to sustain a claim that the documents were National Defense Information. But this stunt may soon meet diminishing returns, unless and until Dearie (who knows more about national security than any of Trump’s lawyers and Cannon) is fired.

As I noted in this post, in her order appointing Dearie, Cannon edited the boilerplate language in Special Master orders to give herself the authority to remove Dearie, unrelated to whether his process gets bogged down.

More interesting still: It says Trump won’t submit any declarations until he’s doing so in the process of claiming he owns these formerly classified documents. Cannon, of course, should have demanded that he at least assert that he had declassified some of these documents to sustain her usurpation of Executive Branch authorities, if not a log of which ones. If and when Cannon fires Dearie for overstepping her neat plan to stave off a Trump indictment, this point of dispute will become central. But by then, Cannon’s own nonsensical rulings may also be exposed.

There’s an even more telling dispute between the government and Trump, though. The government’s filing basically enters into this process with so much good faith that it squeaks: not contesting the conflicts of his lawyers, not disclosing what other parts of Cannon’s order they may still appeal, not even suggesting they’ll continue to appeal the order on classified documents if the 11th Circuit does not issue a stay. On that point, they say simply, they’ll return to it.

1 The government applied to the Eleventh Circuit for a stay last week and Plaintiff’s response is due tomorrow at noon, before the Master’s preliminary conference. If the Eleventh Circuit stays Judge Cannon’s order with respect to documents with classification markings, then the Special Master will not review the documents with classification markings. If the Eleventh Circuit does not stay the review of the documents with classification markings, the government will propose a way forward.

The government is approaching this review as if Dearie will quickly resolve all these issues and they can move on with their investigation. It’s worth noting, to the extent that the NSD lawyers involved have been involved in FISA proceedings, they may well understand how Dearie likes to work in consultative discussions not dissimilar from this one.

Much of the rest of the government filing basically addresses practicalities: How to share these documents. It proposes to get Relativity (a legal discovery software tool) to scan and upload everything within days. Trump will have to pay for the license, because he has to pay for all of this.

The government proposes that Trump’s team review 500 documents a day, which will result in a 22-day review time period after the documents are scanned, which would complete them all by around October 15, with a few days to start the scanning process.

But it’s clear Trump wants to do none of this work (indeed, he likely wants to delay until they’ve seen all the documents at once). That’s evident because he’s proposing a two week deadline for the 64 potentially privileged documents that (all sides note) the government provided Trump on September 16.

Plaintiff to create privilege log (with basis) for Exh. A documents: TBD (two weeks?)

This is insane! Trump wants two weeks to delay reviewing 64 documents he had already had three days to review by yesterday. According to both the government and Dearie proposals, Trump should have finished with that document review on Saturday.

I think there’s a non-zero chance Dearie gets fired, and I assume Trump just hopes that happens before the government has won a stay of Cannon’s order prohibiting them from accessing the classified records and before he has admitted that most if not all of these potentially privileged documents are not.

Axios reported that Trump believed Dearie would be suspicious of the FBI based on his experience with the Carter Page order, something I had already contemplated in this thread. Even if he were, though, he’d be suspicious within the context of the law. Moreover, as I noted, there was still plenty in the application to sustain suspicion in Page, including that he seemed to know in advance of the October surprise that WikiLeaks delivered on October 7 and he destroyed a phone as soon as the investigation into him became clear.

And unless and until he gets fired, Dearie seems to plan to make these legal issues public — something that never works out well for Trump.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

That we will honor and defend our Constitution.

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

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

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

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

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

Things could get really crazy in weeks ahead.

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

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

In Motion for a Stay, DOJ Raises Prospect that Trump Leaked Classified Documents

In the government’s motion for a stay submitted to the 11th Circuit last night, it suggested the investigation into Trump’s stolen documents may have expanded to focus on whether the former President shared the content of highly classified documents with others.

It describes that Aileen Cannon’s order only permitted the government to review the classified documents for hypothetical risk of future disclosure. It notes that that would prohibit the government from investigating whether these documents have already been disclosed. It then raises the empty folders as a problem that must be solved, in part by identifying the patterns of Trump’s theft to identify what else he may have stolen.

The district court specified that its order should not interfere with the IC’s “classification review and/or intelligence assessment,” A14, and later clarified that “to the extent that such intelligence review becomes truly and necessarily inseparable from criminal investigative efforts,” the order “does not enjoin the Government from proceeding with its Security Assessments,” A9. But that is not sufficient. The IC’s review and assessment seek to evaluate the harm that would result from disclosure of the seized records. A40-A41. The court’s injunction restricts the FBI—which has lead responsibility for investigating such matters in the United States—from using the seized records in its criminal-investigative tools to assess which if any records were in fact disclosed, to whom, and in what circumstances.

For example, the court’s injunction bars the government from “using the content of the documents to conduct witness interviews.” A9. The injunction also appears to bar the FBI and DOJ from further reviewing the records to discern any patterns in the types of records that were retained, which could lead to identification of other records still missing. See A42 (describing recovery of “empty folders with ‘classified’ banners”). And the injunction would prohibit the government from using any aspect of the seized records’ contents to support the use of compulsory process to locate any additional records.

Disregarding a sworn declaration from a senior FBI official, the court dismissed such concerns as “hypothetical scenarios” and faulted the government for not identifying an “emergency” or “imminent disclosure of classified information.” A11. But the record makes clear that the materials were stored in an unsecure manner over a prolonged period, and the court’s injunction itself prevents the government from even beginning to take necessary steps to determine whether improper disclosures might have occurred or may still occur.

Significantly, the government doesn’t even use language to suggest that these documents were compromised, without Trump’s involvement — that some fake Rothschild or a hotel valet had snuck into the closet and stolen documents. It suggests these documents may have been disclosed, intentionally and knowingly.

This is not the only hint in the filing that the investigation may have expanded beyond mere unauthorized retention of classified records.

The motion also describes that Trump’s lawyers might be witnesses, plural, suggesting that Jim Trusty could be hidden in the search affidavit as the FPOTUS Counsel 2 implied by the affidavit’s description of Evan Corcoran as FPOTUS Counsel 1 (Christina Bobb is referred to merely as Individual 2).

The government came very close to saying that Judge Cannon has prohibited the government from preventing leaks in process.

Aileen Cannon’s Special Master Is Designed to Preempt Decisions Reserved for a Jury

As I reported, Aileen Cannon denied the government’s motion for a stay and issued her order laying out what she expects Raymond Dearie to do. Having considered her order, I’m fairly certain that this is a plan not for a Special Master, but rather a plan to seize back the materials, and along the way, punish the government for having the audacity to investigate Trump, much less tell him what is and is not classified.

Here are the relevant documents and some other Special Master materials to compare to.

Cannon opinion denying stay

Cannon’s order of appointment

Raymond Dearie declaration

Joint response on Special Master

Trump proposal for Special Master

DOJ proposal for Special Master

Kimba Wood’s order of appointment for Michael Cohen (docket)

Paul Oetken’s order of appointment for Rudy Giuliani (docket)

Analisa Torres’ order of appointment for Project Veritas (docket)

Before I lay out how Cannon has set up this SM review to allow herself the means to steal US government property and punish the government, consider the following:

  • Cannon has already upended the logic of a lawful warrant, in which the government has presumptive retention of the seized materials, by instead assuming that the government can only retain materials they prove ownership of. Cannon has largely ignored the nature of the suspected crimes here, and the degree to which her decisions would claw back materials that are evidence of a crime.
  • Cannon has created the harm she intends to correct, most obviously by refusing to let the government share potentially privileged material, and then pointing to their retention of potentially privileged material as the harm she must address.
  • Cannon has already told the government, repeatedly, that she can override their classification decisions and withhold materials based on an Executive Privilege claim that under the Presidential Records Act, would prove it belongs in NARA (indeed, at each step, Cannon has been more insistent that Trump has EP claims than he has).

Cannon’s order denying the stay continues those three stances. She cited her own claim — based off misrepresentations and inventions — that were disputes about privilege and non-evidentiary personal material.  Rather than demand that Trump show ownership and harm (the standards she needed to find under binding precedent), she instead said he simply hadn’t had a chance to make his case:

Plaintiff has not had a meaningful ability to concretize his position with respect to the seized materials given (1) the ex parte nature of the approved filter protocol, (2) the relatively generalized nature of the Government’s “Detailed Property Inventory” [ECF No. 39-1], and (3) Plaintiff’s unsuccessful efforts, pre-suit, to gather more information from the Government about the content of the seized materials

Again, it was Cannon’s own order that forestalled a privilege discussion, and she now cites it to justify her decision. Cause the harm, then fix it. Finally, she lays out a claim that the government does not have a monopoly on determining what is classified.

The first premise underlying the Motion is that all of the approximately 100 documents isolated by the Government (and “papers physically attached to them”) are classified government records, and that Plaintiff therefore could not possibly have a possessory interest in any of them.

From the very start, Aileen Cannon has asserted — often more aggressively than Trump — that the government cannot make decisions with regards to classification and privilege that, under the Constitution, are reserved for the government.

With all that in mind, consider the following aspects of her order. First, taken literally, her order instructs the government to give Dearie the actual documents seized, not copies.

At a minimum, the Government shall make available to the Special Master the Seized Materials, the search warrant executed in this matter, and the redacted public versions of the underlying application materials for the search warrant. [my emphasis]

Effectively, she took out the government’s use of the word “copy” in this passage.

In particular, the government will provide to the Special Master a copy of the Seized Materials without Classification Markings, the search warrant executed in this matter, and the redacted public version of the underlying application materials for the search warrant.

In both the Rudy and Cohen Special Master reviews, the government provided the Special Master copies. Admittedly, those reviews were largely digital evidence, but her order states the government only needs to give copies of potentially privileged items to Dearie.

The Privilege Review Team shall provide copies of the potentially privileged documents to Plaintiff’s counsel. [my emphasis]

That is, taken literally, Aileen Cannon is ordering the government to deliver 11,258 government documents — the originals — into the possession of a Special Master controlled by her, the disposition of which she will determine. That disposition will, in many ways, pertain to classification and Executive Privilege, topics about which she has already asserted she can override the government.

The first thing Dearie is to do after receiving these materials is to double check the government’s inventory.

Verifying that the property identified in the “Detailed Property Inventory” [ECF No. 39-1] represents the full and accurate extent of the property seized from the premises on August 8, 2022, including, if deemed appropriate, by obtaining sworn affidavits from Department of Justice personnel;

I’ve not seen this in Special Master reviews before. It seems designed to give Trump and Cannon reason to invent a Fourth Amendment harm (again, at the Special Master stage, not at a suppression stage) where there is none.

For each of the reviews she is asking Dearie to conduct, the two sides present their designations. If they agree, the items are disposed of according to the “parties’ agreement.”

If the Privilege Review Team agrees with Plaintiff’s position, the subject document shall be handled in accordance with the parties’ agreement.

[snip]

If the Government agrees with Plaintiff’s position, the subject item or document shall be handled in accordance with the parties’ agreement.

The problem with even this part of her order is that the parties don’t agree what happens with the various categories! Trump’s proposal only addresses what happens with Presidential Records. He concedes they should go to NARA, but he wants to be able to challenge access once they get there.

Once the Special Master has completed the review process set forth in this Order and any dispute has been fully adjudicated, any documents identified as Presidential records will be returned to the Archivist of the United States, and the process under the Presidential Records Act, 44 U.S.C. § 2204, will be followed to determine the assertion of any restriction on access.

The implication is that personal items — even items responsive to the warrant — will go back to Trump’s possession.

DOJ doesn’t actually address what happens with personal items, aside from giving NARA a chance to dispute Trump’s claim. But it only envisions returning privileged items, and in that case, only those that are attorney-client privileged.

iii. For any documents and items claimed by Plaintiff as personal documents and items – not privileged, the Special Master will review the claim in consultation with NARA;

iv. For any documents claimed by Plaintiff as personal documents – privileged as attorney-client communications or qualified work-product immunity, the Special Master will submit those additional potentially privileged documents to the government’s filter team and follow the process in 4(a);

v. For any documents identified as Presidential records – not claimed by Plaintiff as subject to Executive Privilege, those documents shall remain in custody of the government, with copies sent to the Archivist of the United States, and may be used by the government forthwith for any lawful purpose, including in the government’s criminal investigation;

vi. For any documents identified as Presidential records – claimed by Plaintiff as subject to Executive Privilege, copies of those documents will be sent to the Archivist of the United States, and the process under the Presidential Records Act, 44 U.S.C. § 2201 et seq., may thereafter be followed.

Cannon, on her own, gave Dearie authority to make Rule 41(g) determinations, meaning Trump can demand stuff lawfully seized under a warrant rather than waiting until he is charged and suppressing it.

Evaluating claims for return of property under Rule 41(g) of the Federal Rules of Criminal Procedure;

Because Cannon didn’t decide what will happen with various categories of documents, it is guaranteed there will be disputes.

That may be by design. In cases where there is a disagreement, Dearie makes a decision, but if one side still disagrees, then it goes to Cannon. She will not review his recommendation in such cases, she will make a de novo determination.

If the Government agrees with Plaintiff’s position, the subject item or document shall be handled in accordance with the parties’ agreement. If the Government disagrees with Plaintiff’s position, the dispute shall go to the Special Master for a report and recommendation and, if either party objects to the report and recommendation, to the Court for de novo review and decision.

To be clear: both sides asked Cannon to apply a de novo standard in case of a challenge to Dearie’s ruling (it may be standard for that circuit). It is a problem primarily because she hasn’t determined what will happen to various categories of items. And about several of those items — such as classified documents that Trump claims he owns — she has already said she sides with him.  So all Trump has to do to steal classified documents, Aileen Cannon has made clear, is appeal Dearie’s decisions, and she’ll do what she has said she would do from the start: override the government’s decisions about both classification and Executive Privilege.

Cannon’s stated predisposition in the matter is problematic for another reason. There’s boilerplate that appears at the end of Special Master appointments. This is Trump’s version (DOJ’s version has stronger language about a protective order).

15. The Special Master will be discharged or replaced only upon order of this Court.

16. The parties and their agents and employees will observe faithfully the requirements of this Order of Appointment and cooperate fully with the Special Master in the performance of their duties.

17. The parties and their agents and employees will observe faithfully the requirements of this Order of Appointment, cooperate fully with the Special Master in the performance of their duties, and comply with the judicial protective order that shall follow – which will set forth restrictions on the disclosure by any person with access to Seized Materials and any documents generated in connection with this Order of Appointment.

18. The Court reserves the right to remove the Special Master if the Court finds that the parties are not expeditiously completing this work. [my emphasis]

But in her order, Cannon replaced the boilerplate about removing the Special Master if things are not moving along with language that gives her authority to remove him unbound by any specific reason.

17. The Special Master shall be discharged or replaced only upon order of this Court. The Court reserves the right to remove the Special Master.

18. The parties and their agents and employees shall faithfully observe the requirements of this Order and fully cooperate with the Special Master in the performance of their duties.

19. Consistent with and in furtherance of this Order, the Court will separately enter a judicial protective order that sets forth restrictions on disclosure for both the Special Master and the parties, and any agents or employees thereof. The parties shall submit a proposed protective order within five (5) calendar days following the date of this Order. [my emphasis]

In other words, the same judge who has unilaterally decided that she can override government determinations about classification and Executive Privilege has also reserved for herself the right to replace Dearie for no reason.

And to be honest, while the statement Dearie signed is entirely boilerplate, I am concerned that if there are materials pertaining to Carter Page’s FISA in there (I think it likely that Trump had a copy somewhere, though both earlier batches of documents included FISA information so the government may already have it back), then it would represent a conflict, because it might make him a witness to claims Trump wants to make about injury to himself.

3) Where he has served in governmental employment and in such capacity participated as counsel, adviser or material witness concerning the proceeding or expressed an opinion concerning the merits of the particular case in controversy;

At the very least, the terms of this order, combined with Cannon’s repeated insistence that she has the authority to override the government on issues of classification and privilege means she will decide, herself, issues that would go to the core of the crimes of which Trump is suspected. In Espionage Act trials, juries get to decide whether something is National Defense Information, but Cannon has set this review up such that she can decide all those issues on her own, without a jury, before Trump is ever charged.

But it is really really easy to see how Cannon replaces Dearie with Paul Huck Jr, who is basically a Republican lobbyist, and with him starts to invent more harms she can then adjudicate. And at that point, Judge Cannon would use this Special Master review to make yet more false claims of abuse on the part of DOJ.

Go to emptywheel resource page on Trump Espionage Investigation.

Judge Aileen Cannon Deems Grand Jury Subpoenas Toilet Paper

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

Not the Espionage Act, 18 USC 793.

Not removing government documents, 18 USC 2071.

And definitely not obstruction, 18 USC 1519.

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

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

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

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

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

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

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

Go to emptywheel resource page on Trump Espionage Investigation.

Aileen Cannon Orders Government to Share Classified Information with Trump’s Counsel

I’ll have a lot more to say about Judge Aileen Cannon’s order blowing off National Security in favor of Trump’s half-assed claims of being a victim. Her order is a radical assault on national security and rule of law.

But for the moment, I want to look at this part of her work flow order.

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

It orders the government to make the classified documents stolen by Trump available to his attorneys, including Evan Corcoran, who is either a witness or a subject of this investigation. None are known to be cleared. Aside from Jim Trusty, it’s not clear how quickly any of them can be cleared.

In her order, she claims this involves sharing only with the Special Master, Raymond Dearie.

The Government also presents the argument, in passing, that making the full scope of the seized materials available to the Special Master would itself create irreparable harm [ECF No. 69 p. 18]. Insofar as the Government argues that disclosure to a Special Master of documents marked as classified necessarily creates an irreparable injury because the special master process in this case is unnecessary, the Court disagrees for the reasons previously stated. Separately, to the extent the Government appears to suggest that it would suffer independent irreparable harm from review of the documents by the Court’s designee with appropriate clearances and controlled access, that argument is meritless

But these are completely contradictory. One document says the government must share classified information with Trump’s people. The other document says, “it’s only Raymond Dearie, don’t worry your little heads.”

And she just waves her hands and says the government must share this stuff, “including necessary clearance requirements,” without acknowledging that she doesn’t get to decide that. If the government says that none of Trump’s lawyers can be cleared, they get to say that (again, I expect fewer concerns about Trusty, but major concerns about Corcoran).

That’s par for the course of this order.

Go to emptywheel resource page on Trump Espionage Investigation.