I. The Lawsuit
(This section was written Saturday, September 17. For the stuff that happened since yesterday, skip to Section II: The Backfire)
To recap, two weeks after the FBI executed a search on Mar-a-Lago, Trump filed a lawsuit demanding a special master to review the seized documents. He put forward the outlandish claim that he had the right to possess the seized documents—a mindboggling claim given that most of the documents seized by the FBI were government documents, which, by law, must be housed in the National Archives. Moreover, about 100 of them were classified. Some of the documents were so sensitive that some FBI counterintelligence officers needed special clearance to view them
The DOJ filed a motion for a temporary stay pending appeal for those 100 documents. For more, see last week’s post.
Judge Cannon Denied the DOJ’s Request for a Stay
On Thursday, Judge Cannon denied the DOJ’s request. She also appointed Judge Raymond Dearie as special master. (The DOJ approved of the choice; Dearie has a reputation for being a fair and impartial jurist.)
Here are some highlights from Judge Cannon’s order denying the DOJ’s request:
- She ordered the special master to “prioritize” the 100 documents marked classified.
- She emphasized that she is not stopping a national security review of these documents.
- She rejected the idea that documents marked classified could not possibly be covered by executive privilege.
(Executive privilege protects certain communications among members of the executive branch. The theory behind the privilege is that members of the executive branch should be able to speak openly, particularly with the president, as they hammer out ideas and consider options. The privilege can be asserted if Congress or someone outside of the executive branch wants to view the documents. The Presidential Records Act sets out the law for how the privilege is asserted.)
Judge Cannon also “clarified” what the DOJ can and can’t do with the seized documents. (“Clarified” is in quotation marks, because her order remained unclear.) This is what she says the DOJ can’t do:
Use the content of the seized materials for criminal investigative purposes pending resolution of the Special Master’s recommendations. This includes, for example, presenting the seized materials to a grand jury and using the content of the documents to conduct witness interviews as part of a criminal investigation.
Here is what she says they can do (with my commentary in red):
Conduct investigations and bring charges based on anything other than the actual content of the seized materials (which, for example, means they can investigate fingerprints.)
Question witnesses and obtain other information about the movement and storage of seized materials, including documents marked as classified, without discussion of their contents (so it seems they can still investigate based on the fact that the documents are marked classified),
Brief Congressional leaders with intelligence oversight responsibilities on the seized materials
Review the seized materials to conduct the Security Assessments and involve the FBI in the foregoing actions.
Continue to review and use the materials seized for purposes of intelligence classification and national security assessments.
Then she adds this:
To extent that the intelligence review becomes truly and necessarily inseparable from criminal investigative efforts concerning the content of the seized materials, the September 5 Order does not enjoin the Government from proceeding with its Security Assessments. (This essentially gives the DOJ discretion to continue the criminal investigation if it is “truly and necessarily inseparable” from national security and intelligence reviews. The problem is that the DOJ said they are truly and necessarily inseparable. So what exactly is she enjoining? Who the heck knows?)
Here is how Judge Cannon explains her order: Because Trump is a former president, she wants a neutral third party to double-check what the DOJ is doing. She says the special master is just checking to make sure (1) none of the documents are Trump’s personal property, (2) none are covered by attorney-client privilege, and (3) none are covered by executive privilege.
Meanwhile, here’s what Trump is doing: He is trying to create obstacles in the hopes that he can suppress some of the evidence against him. This is what defendants do. Ordinarily, though, the way to do it is after indictment. This is a brand new procedure that Cannon is inventing. (Special masters are usually for attorney’s office and the DOJ is fine with this because they really don’t want to see stuff they shouldn’t see and taint the investigation. What Cannon has done here: Appoint a special master to generally check the work of the prosecutors would be every defendant’s dream at this stage.)
These questions came to me on social media
An FBI/DOJ expert on Twitter said that this ruling sets up the ability for Trump to use fruit of the poisonous tree. Does it?”
A district court ruling is not a binding precedent on any other courts. Yes, lots of criminal defendants will start asking for special masters, and they will be told no. This will not destroy criminal justice in America.
If the DOJ does indict him, they won’t do it in front of Cannon, would they?
I assume the DOJ will frame the charges so that they can be brought in D.C. The actual theft happened there, after all.
“But why did she rule this way?”
There are a lot of theories out there (she’s compromised, she’s been bought, etc.) If you read her opinion, she seems to think she’s being reasonable. She says it’s a limited ruling, she’s expediting the 100 documents, everything will be done in a few months, and all of this is just for transparency and “public trust.”
Hanlon’s razor is an adage or rule of thumb that states basically says if you are not sure whether a person is evil or incompetent, the person is most likely incompetent. Until there is solid evidence to the contrary, I’ll assume that she is incompetent, not very smart, and not qualified for the job. She also obviously likes Trump, but judges are human beings with biases. The better ones manage to make good decisions despite their biases.
The DOJ Files a Motion in the 11th Circuit for a Partial Stay Pending Appeal
No surprise, the day after she rejected the DOJ’s motion for a partial stay, the DOJ filed a similar motion in the 11th Circuit (Court of Appeals). It’s a good idea to first file the motion in the district court, and then, when that gets rejected, go up to the appellate court.
The motion (which you can read here) was written for public consumption. It’s clear and lays out facts that are devastating to Trump.
It opens with a bang:
The district court has entered an unprecedented order enjoining the Executive Branch’s use of its own highly classified records in a criminal investigation with direct implications for national security.
The DOJ disagrees with the entire order, but they are seeking to stay, “only the portions of the order causing the most serious and immediate harm to the government and the public. . . ” They’re (wisely) limiting what they are asking for.
The DOJ points out the absurdity of Cannon’s order as applies to classified documents.
- The special master was supposed to consider claims for the return of personal property, but it’s impossible for government documents marked classified to be Trump’s personal property.
- The special master is also to consider attorney-client privilege, but classified documents cannot have any claims of attorney-client privilege.
- Finally, the special master is supposed to evaluate claims of executive privilege, but sensitive government secrets cannot be protected by executive privilege, and neither Trump nor the court explained how Trump can assert executive privilege against the executive branch. (They didn’t explain it because it makes no sense. Executive privilege is a separation of powers thing.)
- Her order forces the executive branch to show highly sensitive government secrets to Trump’s lawyers.
The DOJ also complains about Cannon’s lack of clarity in what they can and can’t do with the 100 docs. Because what they can’t do isn’t clear, they run the risk of being in contempt if the court later says they overstepped.
One of the most devastating parts of the DOJ’s motion is the part that sets out the history of the case since Trump left office. The pattern went like this:
- Trump said he had no government documents
- The DOJ developed evidence that he had documents
- Trump relented and handed over a bunch of documents and said he didn’t have any more
- The DOJ developed evidence that he still had documents
- Trump handed more over and said that was it, he didn’t have any others.
- After Trump’s lawyer signed an affidavit swearing that Trump had no more documents, the FBI developed evidence that he had more documents, searched, and found 11,000 government documents including 100 marked classified.
(Each time I read these facts, I wonder who kept ratting Trump out. It must drive the paranoid Trump completely crazy.)
Here’s what’s particularly devastating: During the extended process in which the government tried to get the documents back, Trump never tried to assert privilege. He never said, “I have them, but I have the right to possess them.” He said, “I have no government documents and I have no documents marked classified.” (He obviously didn’t expect them to come in and search.)
After the search in August turned up classified documents, he changed his story to “I had the right to possess them under the Presidential Records Act” and “they may be privileged.”
Gaming out best and worst-case scenarios
Best case scenarios:
- The 11th Circuit grants the temporary stay and Judge Dearie is so efficient (and refuses to expose the highly sensitive documents to Trump’s lawyer) that the entire matter is concluded and the remainder of the documents are back with the DOJ within a month or two.
- The 11th Circuit does not grant the temporary stay, but Judge Dearie keeps the top secret documents under wraps and manages to get the crucial documents back to the DOJ within a reasonable time.
Bad case scenario:
- The 11th Circuit does not grant the temporary stay, Judge Cannon starts rejecting Dearie’s reasonable orders, and everything gets tied up on appeal for many months.
Worst case scenario:
- Trump successfully claims privilege over some of the classified documents and the DOJ is unable to use these documents in its criminal investigation against Trump. (Notice charges can still be brought against Trump because there’s plenty of other evidence of violations of the Espionage Act and obstruction statutes.)
Even if Cannon is completely off her rocker, I can’t see the higher courts and the Supreme Court going along with this. After all, the judges appointed by Trump refused to hand him the election by going along with his bogus election claims. While he was president, they denied his claim that he had absolute immunity. Last year, when he tried to assert executive privilege over nonclassified documents to keep them out of the hands of Congress, he lost in the courts.
I just can’t see higher courts saying, “Sure, Trump can make off with top secret US documents and then keep them from the FBI by claiming privilege.” For a sense of how dangerous this would be, consider how likely it is that he is still stashing documents somewhere else. The courts are not going to give him the green light to do with these documents whatever he wants in clear violation of the law.
Then, of course, someone responded with the “50-year myth”:
The 50-year myth goes like this: All was well until, about 50 years ago when the Republican Party jumped the rails and started breaking laws, and here we are today, on the verge of losing our democracy.
People. We didn’t even begin moving toward a true multi-racial democracy until about 50 years ago. Before the 1960s, all of our institutions (governor’s mansions, universities, Congress, industries) were largely run by white men—with a few rare and notable exceptions.
Approximately 50 years ago, things started changing.
- 1954, Brown v. Board of Education declared racial segregation unconstitutional.
- 1964, the Civil Rights was passed.
- 1965, the Voting Rights Act was passed.
- In the 1960s we still had judges who were openly in favor of racial segregation.
What’s happening right now is that we’re riding the backlash from the modern Civil Rights and women’s rights movement. As Daniel Ziblatt and Steven Levitsky say in How Democracies Die, ethnic majorities rarely give up their power without a struggle.
To be fair, most of the doomsaying and panic-mongering comes from not understanding what is happening (and some of those “legal experts” on TV do not help matters), and perhaps not fully understanding our history.
So what do we do?
We look to the heroes of the past, the ones who (with great effort and against huge resistance) managed to push us toward a true liberal democracy. They can teach us the way. I’m talking about Susan B. Anthony, Thurgood Marshall, Pauli Murray, Martin Luther King, Jr. and so many others who dedicated their lives to pushing the needle toward fairness and equality.
We don’t cry like babies each time there is a setback. We get to work. Need ideas? Here’s my to-do list. (Okay, I got that off my chest.)
In my FAQs, I warned you all. This is the answer to question #8 in the current version:
Disillusioned with Democracy
Last year, I was reading this piece about Curtis Yarvin, an influential right-winger who, like libertarian Peter Thiel, is disillusioned by democracy. He wants an autocrat to dismantle most of the federal government. He says the trick is to get liberals and leftists similarly disillusioned with democracy and democratic institutions.
What I see in my comments and the questions I get is widespread disillusionment and despair. See why it worries me?
Part of the problem is that Cable news has many hours to fill, and strong emotions like rage, despair, and euphoria generate engagement. Social media algorithms similarly prioritize content that generates strong emotions. Nobody needs a 24-hour news cycle. As a result of two years of rage and fear-generating content, people believe that the outcome of American democracy hinges on the outcome of these trials.
In fact, whether democracy lives or dies in the United States hangs on the outcome of the next few elections.
If people are spinning with rage or sinking into despair, how will they have the necessary energy to do the real work of saving democracy?
The Appellate Court (11th Circuit) notes that Judge Cannon is not following the normal procedures, but instead, is carving out special procedures. For example, Trump said, “This isn’t a rule 41 return of property motion but I want the special master to return my property” and Cannon did some twists to accommodate this, for example, by calling his motion a “hybrid motion.” (Hybrid motions are not a thing.)
The appellate court noted that Cannon’s ruling appointing a special master rested on flimsy grounds, for example, she justified her ruling by stating that “a special master might be perceived to be more impartial than the Privilege Review Team.”
Here is how they criticize her failure to explain why Trump needs a special master to review the classified documents:
“And the district court made no mention in its analysis of this factor as to why or how Plaintiff might have an individual interest in or need for the classified documents.”
Next comes some real judicial snark. The 11th Circuit said district courts assume equitable jurisdiction only in extreme cases, as when a government showed “calloused disregard” for a defendant’s rights. Since Cannon conceded that didn’t happen, the analysis can stop right there — but the court went on for another 11 pages listing all the other ways that Cannon was wrong. For example:
For our part, we cannot discern why Plaintiff would have an individual interest in or need for any of the one-hundred documents with classification markings.
When you present an argument to the appellate court, everything should be discernable. Here they adopt the DOJ’s language about the whole classification thing being a red herring:
In any event, at least for these purposes, the declassification argument is a red herring because declassifying an official document would not change its content or render it personal. So even if we assumed that Plaintiff did declassify some or all of the documents, that would not explain why he has a personal interest in them.
In explaining that Trump would suffer no harm should the criminal investigation proceed, the court said:
No doubt the threat of prosecution can weigh heavily on the mind of someone under investigation. But without diminishing the seriousness of that burden, “if the mere threat of prosecution were allowed to constitute irreparable harm . . . every potential defendant could point to the same harm and invoke the equitable powers of the district court.”
That would give most people in Trump’s situation a few sleepness nights.
Judge Cannon has been put on notice
Now Judge Cannon knows that if she deviates again from procedures in an attempt to show special favor to Trump, the 11th Circuit will reverse her decision and offer a public reprimand.
Judge Cannon amended her order basically making it impossible from Trump to appeal to the Supreme Court
Thursday morning, Judge Cannon amended her initial order (the one that appointed a special master) entirely removing the classified documents from her order. This basically killed Trump’s ability to appeal the 11th Circuit’s decision to the Supreme Court because there was no longer an underlying order. So even if Trump got the Supreme Court to overturn the 11th Circuit decision (which wouldn’t happen) Trump still wouldn’t have any relief.
Trump would have to appeal Judge Cannon’s amendment, and it’s clear that the 11th Circuit would reject the appeal, and Trump wouldn’t get a temporary stay, so the appeal would do him no good.
Why did she amend her order?
My guess is that she didn’t like being overturned on appeal (a very public humiliation, given that this is such a high-profile case) and it was clear from the way the 11th Circuit framed the issues that the Supreme Court would not touch this one.
Judge Dearie’s Case Management Plan
Also on Thursday, Judge Dearie released his case management plan for the 11,000 not marked classified. It’s here and it’s totally fun to read because Dearie is not having any of Trump’s nonsense.
First, he offers Plaintiff a “final opportunity” to raise any factual disputes as to the accuracy of the DOJ’s Detailed Property Inventory”, but he must do so in the form of a declaration or affidavit. In other words, Trump has to swear under penalty of perjury that there is an inaccuracy in the DOJ’s detailed property inventory.
It’s a put-up or shut-up order. Recall that most of the justification here is that the DOJ and FBI can’t be trusted. Dearie says, “Okay, put specific inaccuracies in writing and sign under penalty of perjury.”
Dearie says that any disputes will be resolved in an evidentiary hearing (meaning he will follow real procedures).
The two parties, the DOJ and Trump, have until tomorrow to agree on a vendor and enter a contract for document handling. (So much for trying to use this for delays). Then he lays out the procedure for Trump to challenge documents for any of these (my comments in red):
- attorney work privilege
- executive privilege that prohibits dissemination of the document within the executive branch (they won’t be able to do this so the DOJ will get everything).
- executive privilege that prohibits dissemination of the document within the outside the branch (Biden will be able to override this, so it’s just a meaningless exercise)
- the document is a presidential record within the PRA (meaning it goes to the National Archives)
- the document is a personal record within the PRA
But this is on a document-by-document basis (on a rolling basis) and Plaintiff has to include “a brief statement explaining the basis for the designation.”
After Trump asserts any of the above, first the parties met and confer to work out any differences. Within 7 days, any disputes that can’t be resolved get submitted to Dearie.
If Trump and the DOJ have a dispute over whether the property is personal, Trump has to explain why he can’t submit a normal rule 41 motion to the magistrate that approved the search warrant (which is what is supposed to happen.) So what’s very likely is Trump says, “This is my personal property but the DOJ says they need to keep it,” and Dearie says, “Go submit a 41 motion to the magistrate judge who issued the warrant because he’s in a better position to evaluate whether the documents fall under the purview of the warrant.”
The plan also contains an explanation of the expenses that will show up on Trump’s invoice. (Trump wanted to split costs with the DOJ. The DOJ said that Trump should pay because he wants this. Cannon said Trump pays, so he has to pay the entire bill.)
Dearie needs to make a few hires, including a former judge at $500 per hour, and staff members. He may also need to hire expert consultants. Any disputes that Trump can’t resolve with the DOJ will cost him extra money because he has to pay the consultants. So he has a huge financial incentive not to dispute anything.
Finally, Dearie reminds Trump that failure to pay would subject him to court sanctions.
I suspect Trump was primarily worried about the documents marked classified. Those are the documents for which he has the most criminal liability. That’s why he’s making all that fuss about “classified.” But the classified documents have been entirely removed from the special master’s review. The DOJ can continue its criminal investigation with those.
So now Trump must pay for a special master to look through everything else while the DOJ continues a criminal investigation of the docs that matter.
Trump’s lawyers tried to slow down the process. In this case plan, Dearie sped up the process. It looks like everything will be wrapped up in October.
Another reason this all makes Trump’s venture a waste of time and his money. I think Trump had another aim in bringing this lawsuit: To discredit the DOJ and FBI, but Dearie isn’t going to help him do that, and after that appellate thrashing, Cannon is highly unlikely to overrule Dearie.
Yet another reason: Trump is soon to be a defendant in a criminal case and all the stuff he has been saying can (and will) be used against him. This is why defense lawyers tell their clients to shut up.
Finally, the 11th Circuit case taking Cannon’s ruling apart was cited by a federal court in Minnesota when denying relief to Mike Lindell (the pillow guy) who had his phone seized by the FBI as part of the investigation into the events of January 6. Lindell sued to get his phone back. The court told him no, and included this quotation from the 11th circuit ruling: “It is a familiar rule that courts of equity do not ordinarily restrain criminal prosecutions.”
So the 11th Circuit’s reasoning for denying Trump’s silly special master lawsuit was used by another federal court to deny relief to Trump’s buddy and co-conspirator, Mike Lindell.
ADDING (one week later):
Trump refused to submit a declaration saying that he actually declassified documents
The Appellate Court (11th Circuit) notes that Judge Cannon is not following the normal procedures, but instead, is carving out special procedures. For example, Trump said, “This isn’t a rule 41 return of property motion but I want the special master to return my property” and Cannon did some twists to accommodate this, for example, by calling his motion a “hybrid motion.” (Hybrid motions are not a thing.)
The appellate court noted that Cannon’s ruling appointing a special master rested on flimsy grounds, for example, she justified her ruling by stating that “a special master might be perceived to be more impartial than the Privilege Review Team.”
Here is how they criticize her failure to explain why Trump needs a special master to review the classified documents:
“And the district court made no mention in its analysis of this factor as to why or how Plaintiff might have an individual interest in or need for the classified documents.”
Next comes some real judicial snark. The 11th Circuit said district courts assume equitable jurisdiction only in extreme cases, as when a government showed “callous disregard” for a defendant’s rights. Since Cannon conceded that didn’t happen, the analysis can stop right there — but the court went on for another 11 pages listing all the other ways that Cannon was wrong. For example:
“For our part, we cannot discern why Plaintiff would have an individual interest in or need for any of the one-hundred documents with classification markings.”
When you present an argument to the appellate court, everything should be discernable. Here they adopt the DOJ’s language about the whole classification thing being a red herring:
In any event, at least for these purposes, the declassification argument is a red herring because declassifying an official document would not change its content or render it personal. So even if we assumed that Plaintiff did declassify some or all of the documents, that would not explain why he has a personal interest in them.
In explaining that Trump would suffer no harm should the criminal investigation proceed, the court said:
“No doubt the threat of prosecution can weigh heavily on the mind of someone under investigation. But without diminishing the seriousness of that burden, “if the mere threat of prosecution were allowed to constitute irreparable harm . . . every potential defendant could point to the same harm and invoke the equitable powers of the district court.”
That would give most people in Trump’s situation a few sleepness nights.
Judge Cannon has been put on notice
Now Judge Cannon knows that if she deviates again from procedures in an attempt to show special favor to Trump, the 11th Circuit will reverse her decision and offer a public reprimand.
Judge Cannon amended her order basically making it impossible from Trump to appeal to the Supreme Court
Thursday morning, Judge Cannon amended her initial order (the one that appointed a special master) entirely removing the classified documents from her order. This basically killed Trump’s ability to appeal the 11th Circuit’s decision to the Supreme Court because there was no longer an underlying order. So even if Trump got the Supreme Court to overturn the 11th Circuit decision (which wouldn’t happen) Trump still wouldn’t have any relief.
Trump would have to appeal Judge Cannon’s amendment, and it’s clear that the 11th Circuit would reject the appeal, and Trump wouldn’t get a temporary stay, so the appeal would do him no good.
Why did she amend her order?
My guess is that she didn’t like being overturned on appeal (a very public humiliation, given that this is such a high-profile case) and it was clear from the way the 11th Circuit framed the issues that the Supreme Court would not touch this one.
Judge Dearie’s Case Management Plan
Also on Thursday, Judge Dearie released his case management plan for the 11,000 documents not marked classified. It’s here and it’s totally fun to read because Dearie is not having any of Trump’s nonsense.
First, he offers Plaintiff a “final opportunity” to raise any factual disputes as to the accuracy of the DOJ’s “Detailed Property Inventory”, but he must do so in the form of a declaration or affidavit. In other words, Trump has to swear under penalty of perjury that there is an inaccuracy in the DOJ’s detailed property inventory.
It’s a put-up or shut-up order. Recall that most of the justification here is that the DOJ and FBI can’t be trusted. Dearie says, “Okay, put specific inaccuracies in writing and sign under penalty of perjury.”
Dearie says that any disputes will be resolved in an evidentiary hearing (meaning he will follow real procedures).
The two parties, the DOJ and Trump, were given a single day to agree on a vendor and enter a contract for document handling. (So much for trying to use this for delays). Then he lays out the procedure for Trump to challenge documents for any of these (my comments in red):
- attorney work privilege
- executive privilege that prohibits dissemination of the document within the executive branch (they won’t be able to do this so the DOJ will get everything)
- the document is a presidential record within the PRA (meaning it goes to the National Archives)
- the document is a personal record within the PRA
But this is on a document-by-document basis (on a rolling basis) and Plaintiff has to include “a brief statement explaining the basis for the designation.”
After Trump asserts any of the above, first the parties “meet and confer” to work out any differences. Within 7 days, any disputes that can’t be resolved get submitted to Dearie.
If Trump and the DOJ have a dispute over whether the property is personal, Trump has to explain why he can’t submit a normal rule 41 motion to the magistrate that approved the search warrant (which is what is supposed to happen.) So what’s very likely is Trump says, “This is my personal property but the DOJ says they need to keep it,” and Dearie says, “Go submit a 41 motion to the magistrate judge who issued the warrant because he’s in a better position to evaluate whether the documents fall under the purview of the warrant.”
The plan also contains an explanation of the expenses that will show up on Trump’s invoice. (Trump wanted to split costs with the DOJ. The DOJ said that Trump should pay because he wants this. Cannon said Trump pays, so he has to pay the entire bill.)
Dearie needs to make a few hires, including a former judge at $500 per hour, and staff members. He may also need to hire expert consultants. Any disputes that Trump can’t resolve with the DOJ will cost him extra money because he has to pay the consultants. So he has a huge financial incentive not to dispute anything.
Finally, Dearie reminds Trump that failure to pay would subject him to court sanctions.
I suspect Trump was primarily worried about the documents marked classified. Those are the documents for which he has the most criminal liability. That’s why he’s making all that fuss about “classified.” But the classified documents have been entirely removed from the special master’s review. The DOJ can continue its criminal investigation with those.
So now Trump must pay for a special master to look through everything else while the DOJ continues a criminal investigation of the docs that matter.
Trump’s lawyers tried to slow down the process. In this case plan, Dearie sped up the process. It looks like everything will be wrapped up in October.
Another reason this all makes Trump’s venture a waste of time and his money. I think Trump had another aim in bringing this lawsuit: To discredit the DOJ and FBI, but Dearie isn’t going to help him do that, and after that appellate thrashing, Cannon is highly unlikely to overrule Dearie.
Yet another reason: Trump is soon to be a defendant in a criminal case and all the stuff he has been saying can (and will) be used against him. This is why defense lawyers tell their clients to shut up.
Finally, the 11th Circuit case taking Cannon’s ruling apart was cited by a federal court in Minnesota when denying relief to Mike Lindell (the pillow guy) who had his phone seized by the FBI as part of the investigation into the events of January 6. Lindell sued to get his phone back. The court told him no, and included this quotation from the 11th circuit ruling: “It is a familiar rule that courts of equity do not ordinarily restrain criminal prosecutions.”
So the 11th Circuit’s reasoning for denying Trump’s silly special master lawsuit was used by another federal court to deny relief to Trump’s buddy and co-conspirator, Mike Lindell.
A follower on Twitter asked:
Don’t know how case law happens but is Trump. vs. US (Trump’s special master lawsuit) establishing new case law?
Given how the 11th circuit ruled, it is establishing a precedent that hurts people in Trump’s position and helps the DOJ. District court rulings are never governing precedent for other courts. Those are the lowest courts. Other district courts can look to see what they did in an advisory capacity, but only appellate rulings create precedent. This is because lower courts are obliged to follow the rulings of higher courts. So the 11th Circuit (an appellate court) ruling now governs all courts below it. Because the Supreme Court is the highest court, when it creates a rule all federal courts must follow it, and when it rules on the Constitution, all courts must follow it.
Teri. I feel like I’m missing something about all this. When I asked, in a different post of yours, why the Florida resort didn’t become a crime scene you replied that it would be’ illegal search and seizure’. The government can only do so much.
Is that because Trumps actions were ‘alleged’ and there needs to be more proof of intent? Because in the past couple weeks it’s been clear, by his own words, his lawyers and his self-appointed judge, that he stole the documents, transported them illegally and recklessly, refused to return them, offered inane reasons why he took them and, insanely, demanded the documents be returned to him.
It seems by this time that “search and seizure” of Mar-a-Lago and all his other properties to find other possible government documents, not to mention any evidence of the ones from the empty folders.
It’s frightening that this has taken place but to read that all that’s happening is a battle between FBI/DOJ and the two courts over a Special Master is just plain frustrating. It seems a little urgency would be warranted. What am I missing?
R
The way it works is like this: The DOJ developed evidence that Trump was hoarding documents at Mar-a-Lago that belonged to the government. They obtained a search warrant based on probable cause that the evidence would be on the premises. The evidence was there. They seized what they were permitted to seize.
Search warrants have to be very specific: In other words, the government has to know exactly what they are looking for, and they are only allowed to seize what they specifically went to look for.
If they develop solid evidence that he has documents elsewhere, and they can persuade a magistrate judge that he is hoarding documents somewhere else, they will get a warrant to seize those documents.
The fact that illegal docs were found in one house is not by itself probable cause that there are illegal docs elsewhere.
The Constitution contains the 4th amendment, which means each person has the right to be free from unreasonable searches and seizures. This means that there are strict rules and procedures for when the government can search and when they can’t. This is good. We want fourth amendment rights honored.
It isn’t clear what evidence the DOJ presented to get the search warrant. It’s possible that a person close to Trump ratted him out and the DOJ persuaded the magistrate judge that the person was credible.
Let me know if this answers your question.
I have a question about timings now that the SM process is going ahead. Is it likely that Dearie will complete work as special master before a ruling from the 11th circuit court is given? (I’m talking about the whole appeal placed by the DOJ not the stay for the 100 classified docs). If the appeals court ruling comes out first, and rules in favor of the DOJ to throw the whole thing out, will Dearie simply cease the unfinished work and pack up and go home? And would Judge Cannon’s role be over at this point too?
Yes, if the DOJ wins its appeal, the whole shebang stops. I suspect Dearie will finish sooner.
When Trump received classified documents as president, weren’t there records of what he received and what was or wasn’t returned? In other words, doesn’t the DOJ know exactly what’s now been returned and what’s still missing?
There probably should be records, but the administration was so haphazard and disorganized, and apparently Trump cared nothing for any of those procedures, so it will take some work to figure out what’s missing.
You say that this is “a very public humiliation” for Cannon. That’s why I don’t understand her. I believe she ruled in good faith and isn’t corrupt as some accuse. But surely she would anticipate her, shall we say, “unorthodox” ruling would be overturned? Is the likelihood of being overturned not a factor that judges consider before making a ruling? I’m also curious if having a higher court overturn you is humiliating for judges in general or that’s specific to the context of this case.
I’m with you. I think most people think they’re doing a good job.
In general district courts dislike being overturned by higher courts. They always try to frame their arguments to try to withstand being overturned.
My take (in the absence of evidence to the contrary) is she thought the appellate court would agree with her, that when a former president is under investigation, it’s a good idea for a court to oversee the process. I didn’t know for sure what the 11th circuit would do, but I was confident that the Supreme Court would not let a ruling like that stand.
A month on as we see the results of various appeals – it surprises me that I haven’t seen any rants from T about —whatever he wants to make up about her — because her actions seem to be backfiring on him for the most part. There has been some delay, but only a little. And now that he’s actually started making claims on the records (the first 9 anyway), they very clearly are not personal and are covered by the PRA.
Part II: The Backfire….. Finally, Trump is soon to be a defendant in a criminal case and all the stuff he has been saying can (and will) be used against him. This is why defense lawyers tell their clients to shut up.
As Ron White says…. “I Had the Right to Remain Silent…But I Didn’t Have the Ability”
and that, my friends, is exactly where trump finds himself…..
Teri,
As you know, the plain language of the PRA requires records disputes to be handled by the DC District Court. This may be a stupid question, but why, if we’re talking about record disputes related to the PRA, hasn’t DOJ filed a motion to have the case removed to the DC District Court?
Thanks,
Peggy
Cannan took equitable jurisdiction. The DOJ did challenge her jurisdiction, and they may win on appeal. All the same things would have happened. She would have denied the motion and it would have gone up on appeal. The DOJ went for the immediate relief that it wanted: Removing the 100 classified documents.
Thank you so much for your commentary. I follow several lawyers and I recently have added you.
Sometimes, I find myself wanting to respond to a tweet and putting that tweet into context here is a bit difficult, so may I point to my tweeted response? I will and see if it works for you.
https://twitter.com/bruckorb/status/1572624981225512963
I agree. It’s clear for all the documents and clearer for the 100. It’s also harder with those 100 for Trump muddy things up.
Teri, thanks for your detailed, insightful explainers here and on Twitter. Very helpful in seeing through the smoke to understand the actual merits of the legal arguments being made. Here it seems that trump has driven a clown car full of Giuliani/Kraken-level lawyers into a wood chipper of no nonsense DOJ lawyers. The out the DOJ side even illuminates the incompetence and malfeasance of trump’s ally cannon. I wish the network news would have you explain what’s going on in the courts, rather than the doing the superficial “both-siding” of the story that ultimately only benefits trump in the court of public opinion. Thanks again.
Well, just learned that emojis don’t show up in replies, thus the appearance of typos above.
I have a question about Judge Cannon’s power re the classified documents. Can she order the DOJ to give Trump’s lawyers access to them regardless of the lawyers’ clearance levels? She has so far refused to acknowledge they are in fact classified. I ask because I imagine that if Judge Dearie decides they are classified and in no way privileged or personal or PRA, that Trusty goes back to Judge Cannon and complains. He seemed very focused on getting immediate access to those documents in front of Dearie.
She can order them to give a Trump lawyer access, but not a particular lawyer. Trump may have to hire someone who can pass whatever security clearance they require. (I am not a national security expert; my area is criminal defense, but this is my understanding.)
I asked this on twitter but I think it got lost in the crowd. Hoping for your insight here:
can trump’s lawyers argue that he really didn’t think he was doing anything wrong? It really seems like he’s such a narcissist that he may really still not believe he’s done wrong. In that sense wouldn’t he lack mens rea? IANAL so pardon if I’m misusing the term.
They can argue that, but they will lose. (1) Trump’s lawyers and others warned him that he would have criminal liability if he kept the documents (2 he lied when he was asked if he had them. As far as insane or mentally ill and unable to understand, that’s a very difficult defense and I’m sure Trump would not allow it. Also he’d lose because it’s not enough to think he wasn’t committing a crime, he has to be unaware that his actions could be considered wrong.
Thank you!
Forgive my ignorance but can you give a fair reason as to why FPOTUS Trump isn’t arrested today? If anyone else had classified materials at their home, it would be an instant arrest while awaiting trial. They throw the book at you for mishandling classified materials even if you did it accidentally. I’m just so confused at the double standard. FPOTUS is a private citizen now, nothing special about him. So why does he still walk around freely?
Please see my FAQs here: https://terikanefield.com/all-new-doj-investigation-faqs/
Teri, taking your Twitter suggestion to come here to post questions … after reading your thread deconstructing DOJ’s reply from last night (9/20), here’s my question:
How close is the “district court” (Cannon) to committing sanctionable rulings (if that’s even a thing) if she continues to double-down on dumb and ignores the facts presented to her? More generally, what are the judicial guard rails that constraint a judge(s) who, for whatever reasons, goes off the rails with clearly biased rulings?
I understand the lifetime-appointment, but does that not include some kind of responsible accountability?
Thanks!
p.s. I’m old enough to remember you having to work overtime to get your verified account. 😉
Judges get things wrong all the time, and are frequently biased. That goes both ways. Nope not sanctionable.
First off, I appreciate your analysis. It’s very insightful. The Trump letter yesterday refusing to lay out specific defenses to me clearly struck as a delay tactic. But I wonder if it’s also Trump tipping it’s hand. DOJ is building a case that classification status doesn’t matter — but I wonder if Trump strategy will be focused on mens rea. That even if Trump did not declassify the documents that he thought he had, and that his possession of them was not knowing. It strikes me that even if that’s what they’re angling for, that investigators are trying to rebut that by focusing on the obstruction case — asking for surveillance video to show knowing misrepresentations, going after folks for potential false statements (who might flip), or point out inconsistent statements. Do you think that if that case is successful that we might be more likely to see an indictment on those ground? Perhaps because it would be easier to prove-up?
Classification does not matter under the terms of the espionage statute.
Am I reading page 7 correctly that the DOJ says the 11th Circuit can nullify Cannon’s ENTIRE order?
Yes. Two things are happening. First, the DOJ is appealing the entire order. But because it takes such a long time for appeals to be decided (at least a month or two) they are also asking for a temporary stay of the 100 documents while the appeal is pending.
The special master continues on with his work while the appeals is decided except for the 100 documents, so if the appeal wins, the special master never sees those 100 documents. Make sense?
Yes, thanks! Seems like most commentators have ignored this “landmine”.
C’mon, Appeals Court!
Yes please hold that thought. You don’t want to give Judge Cannon or TFG and his crew any [good] ideas!
Thank you for your work. What are the chances that Judge Cannon is getting some “informal” and very “off the record” advice and counsel from some interested parties as to how to write her opinions to best accomplish what the former President is trying to accomplish?
You’re welcome. I’m glad it’s helpful. That sort of behavior would be highly unethical and contrary to court rules, and unnecessary. All she has to do, to know exactly what Team Trump wants her to say, is read his filings. Their arguments are all there.
Thank you so much for providing an example of how good social media can be at its best. I’m guessing your restraint with the trolls is truly exemplary, too. Yay you!
I second other comments thanking you for being level headed.
Here’s my question: if this judge continues to do weird things and does indeed show clear bias toward trump or grant his lawyers things they have not asked for, would another court step in to restrain her? She WORKS for the DOJ herself and doesn’t trust them to be fair. She seems to think classified docs could actually belong to trump. She doesn’t seem to understand how exec privilege works or what Biden has said. These things are glaringly apparent to me and I’m not a lawyer. Thanks.
She doesn’t actually work for the DOJ now. The only constraint on a federal judge with a lifetime appointment is the higher courts overturning her decisions and limiting her.
Thanks for your work. It’s nice to read level-headed, informed opinions without fluff or bluster. Please keep it up!
Hi Teri. Thank you for this summary. Team Trump has until noon Tuesday to submit their response to the request for the stay. What’s next after that? Does the panel of 3 judges rule or are there oral arguments they hear? And whichever side loses can ask for all 11 to rule on the stay at that point, right? I’m trying to figure out the procedure. Again, thanks for doing this!
I’ve never practiced in that court, so I’m not quite sure how it will work. (My appellate work was exclusively in California) but I’ll be watching closely.
Thank you so much for this analysis. I especially appreciate that you addressed some of the more panicky/doomsday-ish comments on social media. Good stuff.
Thanks for mentioning Pauli Murray and, for those who don’t know about this remarkable person, I suggest the documentary, “My Name Is Pauli Murray”. I look forward to your post every Sunday and your wonderful wit and sense of humor keep me smiling. I am not a legal scholar but an engaged citizen who continues to try to learn and understand about the past and present and have hopes for the future
There should be a full length biography of Pauli Murray. Speaking of which, Black women are the backbone of the Democratic Party. Black women were also the bottom of the hierarchy in the 19th century, which tells you what you need to know about the Democratic Party. I’ve never yet heard a Black woman say, “Things have never been this bad!” Black women aware of their own history know the work it took to get this far.
The fact that democracy is fragile isn’t new. What is new is that some people are first figuring that out.
Joanie, thanks for explaining Pauli Murray. For those who have Amazon Prime, this movie is “included with Prime” per their site, I plan to watch it. I never heard of her before today.
Teri, thanks for calibrating us toward the end of your post. Agree, we haven’t seen anything yet. I’m expecting the battle to become much more pitched after the mid-term elections. Not so much due to the House and Senate, where the Ds are expected to do surprisingly well (thanks to Roe, Roe, Roe your vote!) but the state-level and county-level elections, especially those positions that can influence voting, and which are likely to be corrupted by partisans (per Steve Bannon’s plan). And this is only 2022, not 2024.
When you spend your entire life in a country that seemed to be the most stable place on earth, the fragility of its political system is shocking to anybody who doesn’t study political science or history (which means most of us). I have a subscription to “Wondrium” (formerly “The Great Courses”) and can recommend “Democracy and Its Alternatives”:
https://www.wondrium.com/democracy-and-its-alternatives
Thanks for your calming and informative analysis, per your usual. I especially appreciate your caveats regarding where we are in the judicial process. When the indictments do come down, the real frenzy will commence (making the Bannon theatrics look mild in comparison.) But, hopefully, the end result will be a just verdict that strengthens our constitutional democracy and relieves us of the mental exhaustion of the Trump era. Speaking of taking the long view, I would highly recommend the print version of David Corn’s new book, American Psychosis. (I initially decided on the Audible version, but the names, dates and facts are so dizzying that I really need to be able to “flip back pages” to get things straight in my mind.) It is a reminder that the GOP’s game plan of invoking fear to harness support has been in operation for decades. Your overview of democratic gains over the same time period, added to the recent polls showing voters’ attitudes going into the Nov mid-term elections, give me hope that the majority of U.S. citizens will do their duty to shore up “the guardrails.” The GOP cannot turn back time, unless we give them the power to destroy us. Collectively, we’ve been smarter than that, and we still can be.
You say, “Until there is solid evidence to the contrary, I’ll assume that she is incompetent, not very smart, and not qualified for the job.” I say, our assumption of their incompetence is exactly what trump & co. have depended on for the last 6 years. In the meantime, they either dismantle or take over every institution that protects the foundations of democracy. Yes, follow the process, but do so with eyes wide open.
Agree! Incompetence doesn’t mean a person is less dangerous but we are eager to think it does.
Human nature = “We want things to be ok!”, and if there’s the slightest chance incompetence means the opposite of evil (another way our human brain is desperate to simplify and screw up our thinking even more), most of us will gratefully conclude we can relax a little.
Incompetence kills, too.
A friend directed me to this site, and I want to express my gratitude for your calming and level-headed explanation of the facts. Media and politicians have been leveraging pathos so single-mindedly that even they have begun to believe their own fiction that emotions actually do represent facts. Of course, this is dangerous nonsense. Emotions are factual to the extent we really feel them, but they also can be completely divorced from the actual facts on the ground. “High dudgeon” feels active and exciting which is why it sells, but neurologically it takes the rational thought processes offline–fight/flight mode is reactive, not responsive. The events being discussed in this blog are the result, largely, of one person allowing himself to take his own impulses as facts to act on. His actions from his position of power has unleashed a contagion of lawlessness. I do not want to be drawn into making the same mistake by overreacting to the facts: thank you for the anchor in sanity.
Teri, even if the special master gets the “review” done expeditiously, didn’t the judge give herself the right to reject the master’s findings (under any circumstance she chooses) and RE-appoint another special master? “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.” She could turn around and name Huck as Special Master, and his “findings” (after, no doubt, prolonged delay) are pretty much pre-determined, aren’t they?
Also, in a larger sense, is any part of the judge’s ruling now deemed to be any sort of precedent, or would her “opinions” have to be upheld for that to happen?
Thank you for keeping me sane (well, that’s relative, I suppose) for the past few years!
Yes, she did. She also said that she wanted a neutral third party to make the decisions. If she does go that far off the rails, I have a very hard time believing that the higher courts will allow it.
Just wanted to say a very sincere ‘thank you’ for all you’re doing with your research, analysis, and writing on this labyrinthine and very scary topic. I’m not saying this to ignore my individual responsibilities; but I do always feel a little better after reading your post. That has a wider usefulness in that I’m more settled and probably less belligerent when I encounter people and talk to them about these issues. And, I don’t agree with people who say that we don’t ‘deserve dogs’; we absolutely do and they deserve us as well.
I feel like we’re in very capable, clean hands. Someday, people will appreciate the methodical restraint of the DOJ under Merrick Garland. To restore the rule of law, AG Garland has had to channel Ginger Rogers—doing everything backwards and in high heels to get the job done. Who knew he could cut a rug?
Timothy McVeigh.
Thank you Teri! You lay it all out so well. They should get you on CNN or MSNBC so we can have some really goos information and analysis to the public. You are doing a real fun\ public service.
You’re right that almost all – I think all – the Trump-appointed judges have NOT ruled in favor of his various inanities. That’s why this one is making such waves: she’s the first that’s bending over backwards to enable his dangerous silliness. My personal opinion is that she’s scared to death that this got thrown in her lap. We’ve been lucky that all the other judges have bravely withstood the pressure and threats. We can’t expect everyone to be a hero and bravely stand up to death threats and worse, which she would certainly have received if she had thrown this out immediately, as she should have. Her incoherent manner of handling this, however, certainly shows she’s not up to the job she got rammed into at the last minute by McConnell and the goons at the Federalist Society, may they rot in hell forever.
Whether her fear is generic regarding Trump stochastic terrorism, or whether she’s been “warned” by the former president, will probably come clear in the near future. Nothing stays secret very long any more. At any rate, her reputation is now mud except among the few Magats, and any career she hoped to have is pretty much doomed unless the neo-fascists actually do take over.
Her reputation isn’t mud. She’s a sitting judge with a lifetime appointment. She’s there for life.
I don’t think she’s afraid at all. Her incoherent reasoning reminds me a lot of the way her ideological colleagues on the Supreme Court “reason”. They’re not afraid either.
They think they are right. They don’t understand that they are rationalizing to get to the result they want. The same thing happened with segregation, which was couched as “states right” and “local control.”
My experience with conservatives, especially conservative Catholics, is that their education is medieval. They were taught what to think, not how to think.
By contrast, The Enlightenment was all about being open to letting the world teach you, becoming data-driven, not: you filtering the world through your unexamined prejudices. And so all sorts of rationalizations – unexamined mind garbage really – run rampant in their conclusions about how the world works or should work.
I so look forward to the day when Enlightenment people can once again be in charge of this country, and reform the Court system, among other things. If nothing else, the current crop of partisans – epitomized by John Roberts’ public incomprehension at his Court’s crated reputation – has pushed its glaring and painful deficits in full view (whether Roberts really is this stupid and out of touch, or he’s playing a game, isn’t clear).
I have to disagree a bit here, Kirk. I had 12 years of Catholic education and am deeply grateful for the wisdom of the nuns and lay women who taught me how to think critically, read and write carefully and look for logic and evidence.
Of course, one big result was that, once I left the nest for university, my days of Catholicism were over. There was nothing medieval about my education – except for the Catholic part!
And it’s not just Catholicism that is guilty of “unexamined mind garbage”. It’s all religion.
I am no expert in Catholicism, but I’m pretty there are different orders and ways of thinking within the Catholic church. For example, the Jesuits are super academic free thinkers. They rescued the Jews in Europe during WWII, founded schools all over the world that educate all children (my husband, a Jewish Chilean, attended one as a child growing up in Temuco, Chile and got an education he wouldn’t have gotten in a public school).
A lot hinges on both the SM and the 11th Circuit, both of which could completely discredit Cannon, or further embolden her. If we believe what she’s saying, i.e., that she is trying to be transparent and fair, it really appears that her claims that she has to consider the plaintiff’s former position completely undermine that from the get go. By law, he is now a private citizen and should get no more nor any less consideration than any other private citizen in court. This whole nutso case sparked by Trump’s demand for a SM is maddening. Thank you for your calm and complete explanations. They do help.
Teri, is this likely to end up at SCOTUS? Surely Trump or the FBI – one or the other – will appeal the 11th appellate court ruling, whatever it is?
If the DOJ loses in the 11th circuit, they may do an expedited appeal to SCOTUS on their temporary stay, but otherwise, anything that goes to SCOTUS will take so long that the case will most likely be moot before then.
Without a stay or temporary restraining order, a SCOTUS appeal would probably take too long to change the outcome.
Why hasn’t TFG yet claimed he broadly declassified everything. What benefit does he get from remaining vague?
Great content btw!
Neither he nor his lawyers have lied to a court, which carries serious consequences. Lots of his lawyers have already been disbarred for that.
He often makes claims in the media that he doesn’t make in court, such as the election fraud cases.
Bingo. Far too many people are conflating the court of public opinion with The Court, where very different rules apply, and conflating what lawyers say to the press vs. what they say in court. As you note they have always been very careful what they say there, going back to all the widespread voter fraud suits where they refused to use the word “fraud” in court. You are one of the far too few people who keep pointing that out. Thank you.
Judge Cannon may be incompetent, but I’d bet her clerks (who likely helped write her opinion) are not. We’ll never see it, but the paper trail of emails and phone logs during the time that opinion was written would be very interesting.
The directions to the SM only allow for two piles: (1)Presidential Records and (2)Personal Records. Isn’t that a “heads I win, tails you lose” kinda thing? My presumption being that most of the items with classified markings are Federal Records (FRA) belonging to the originating agency. Beyond that, she instructed SM to use 41g without a 41g ever being asked for. And there is no protective order to control what the parties & their lawyers do with the documents. That too seems pretty hinky. Thanks for all your hard word explaining things in these very weird times.
The special master (I’m sure) will have a lot of discretion about how to handle these documents, and she is allowing a separate procedure for the 100 documents (expedited).
It’s really all about the special master at this point. If he is unhinged, there is a problem. If he is good (as the DOJ seems to think he will be) these won’t be issues.
For that matter, Cannon can also do something else nutso if the 11th Circuit gives a green light on all of this, but I try not to get too far ahead in the “what ifs.” Better to focus on what is.
Thank you for this clearly written and gratefully understandable legal case. Your comment about not getting too far ahead is good but DOJ and Trump’s lawyers have to be thinking in those terms. It is anxiety producing for me like chess.
Yes please hold that thought. You don’t want to give Judge Cannon or TFG and his crew any [good] ideas!
However, as I understand the ruling, if the Trump team objects to any of the decisions about the documents made by the special master, then Judge Cannon will do a “de novo” review of these documents. I fear this review will be as lawless as her previous decisions in this matter. Hopefully the 11th Circuit will take this out of her hands at least for the documents with classified markings by granting DOJ the requested stay. Interesting take by Marcy Wheeler on Trump’s strategy here: https://www.emptywheel.net/2022/09/20/dont-analyze-trump-legal-filings-based-on-the-law-analyze-them-based-on-power/
What a judge can do and what a judge will do are different. Both sides agreed to Dearier as a special master and her entire rationale was to have a neutral third party look at the documents. Trump’s team actually suggested Dearie, so it’s really unlikely that she will disregard what he said if he doesn’t do what Trump wants and substitute her own judgement. Whether she can and whether she will are different.
Fair enough, though I would argue that Judge Cannon has done some very unlikely things already. In any event, I really appreciate your analysis and perspective – you are awesome. Thank you for your hard work to keep us informed and to help uphold our democracy and the rule of law!