Trump Sweeps Evidence of Obstruction under the Appellate Rug

/106 Comments/in , /by

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.

image_print
106 replies
  1. Paulka says:

    IANAL, but this response appears to acknowledge there is a thing called Federal Records, but then goes on to say the material in question is either a Presidential Record or personal record. Leaving no possibility that the documents are Federal Records-which to me the classified documents would be.

    this is very frustrating.

    • DryHeat says:

      I think you are referring to the Federal Records Act (FRA) vs. Presidential Records Act (PRA) issue. I’ve suggested before that DOJ should consider the carve-out in the PRA that says “official agency records” are FRA, not PRA records, even if received by the president.

      But there may be a good reason they are not, at least for some. A line of cases in the D.C. Circuit (Armstrong I to Armstrong IV) seems to say that the National Security Council (NSC) is not an “agency,” and thus its records are not agency records for PRA purposes. Thus, to the extent these records are from (or come through?) the NSC, they may be subject to the PRA.

      I don’t know enough about it though. It seems to me that the Director of National Intelligence (DNI) would be the head of an agency and that DNI-provided records would be subject to the carve-out. There ought to be some of those in the pile.

      Someone with more experience in this area might know how this works…

    • Rugger9 says:

      For the 11th CCA, that is. I’m a little disappointed that Judge Dearie also didn’t call out the repeated use of the title ‘President’ by Individual-1’s team without the ‘former’ qualifier. Perhaps he’s being polite but Trusty, et al need to be forced to use appropriate titles to avoid muddying the waters about who POTUS is (it’s Biden).

  3. Paulka says:

    I did get a chuckle out of the footnote that says Trump’s handwritten scribbles on Top Secret Compartmentalized documents mean they could then be A-C privileged material.

    • emptywheel says:

      But the docs it addresses are not the ones seized on August 8. I’ll hit his factual errors, probably tomorrow my time. But that’s flat-out not an argument about the August 8 docs.

    • Jim H says:

      With no evidence whatsoever, I long ago speculated that TFG wrote “DE-” in front of every document marked CLASSIFIED. This, of course, might trigger the ‘mutilation’ standard under 18 U.S.C. § 2071, if the documents were not properly declassified (through proper channels with appropriate evidentiary documentation (besides Kash Patel saying he witnessed it)) during the former administration. Just sayin’.

      • bjet says:

        Trump can spell ‘classified’ well enough with his Sharpie too, but he sure as heck would rather keep us stuck on DE.

  5. StevenL says:

    Not a lawyer, nor smarter than EW, but Team FPOTUS’ Argument in B struck me as very weak, attempting to paint the government’s motion as tied strictly to the SM appointment, and not at all to the order denying request for partial stay. I give it a snowball’s chance.

  6. Don_Macaroon says:

    There is an error in the last sentence of para. 3. You used the phrase “smarter people” but I believe the more accurate phrasing would be “people with appellate practice experience.” From my perspective, you are tremendously underselling your smarts! Few folks that I follow are able to present complex legal and evidentiary issues as cogently as you do.

    But in all seriousness, thank you for this post, most especially the side-by-side analysis of the filings. Top-notch, as usual.

    • atriana smith says:

      Totally agree.

      Today I sent another contribution to support her work.

      Btw, just finished listening to her on Nicole Sandlers podcast. She had tons of new insights about TFG & how the msm *could* neuter him.

    • BrokenPromises says:

      I was going to post on that as well. Glad I waited. I would have written, and it echoes “experienced”, more knowledgeable. Marcy is clearly smart as a whip as the old expression goes. If she spent time (don’t know where she’d get it) on appellate matters she would of course be as up to speed as she is on everything else.
      Thank you Marcy, Rayne, bmaz, Ed and all the principals at emptywheel for what you do.

  7. TooLoose LeTruck says:

    I see once again that he is referred to as “President Trump” repeatedly throughout the doc… although one time he is called FORMER President Trump, but only one, I believe.

    And they’re using “quotation marks” on the word “classified” when referring to either records or documents again… even going so far as to drop the word ‘purported’ in front of “classified” more than once.

    There is one piece of information in the doc I think we can all agree is factually, irrefutably, truthful and that’s the heading at the top of each page…

    ‘Donald J. Trump v United States of America’

    That’s about as hard-core truthful as you can get here.

      • earlofhuntingdon says:

        Trump has more than a passing familiarity with reality. He just hates it, and actively ignores it whenever possible. That doesn’t mean he’s stupid or only a fantasist. (He might be both, but I don’t think that fully explains his conduct.)

        As a showman, he’s found that being single- and bloody-minded and obtuse is a winning act. Admitting that any other behavior is necessary lowers butts-in-seats and profits.

        • Doctor Biobrain says:

          Disagree. I think Trump is a narcissist whose brain gatekeeps information to give him false memories and he genuinely believes the things he says which is why he tells provably false lies that don’t benefit him at all. Most of his behavior is counterproductive and if he just read the speeches as they are written, never tweeted, and did nothing but golf he’d still be president and wouldn’t have been impeached.

          Now he’s fighting for his freedom and every single problem he faces is a self-inflicted wound that even a child would have avoided. He’s now so unpopular that he’s doing interviews with Newsmax and Jon Voight because Fox News won’t have him on anymore and his rallies are a shrinking cult that only pretends to like him because they enjoy being with each other. If that’s a winning act then I’d rather be a loser.

        • HW3 says:

          I agree with Dr Biobrain 100%. I know a person, a salesperson, who has spent his whole life training himself to basically not accept any reality but the one he wants. Spent thousands at retreats/seminars, read libraries of books on the topic (they are out there). He is also a narcissist but I attributed a lot of the effort to just the kind of work it takes to be a salesperson which is what Trump is too.

        • TooLoose LeTruck says:

          What’s that immortal line from Seinfeld, uttered by George…

          “Jerry, just remember, it’s not a lie if you believe it’…

        • harold hecuba says:

          “Jerry, just remember…it’s not a lie…if you believe it.”

          — noted philosopher, George Costanza

        • Dark Phoenix says:

          Trump isn’t a standard liar; he’s a bullshitter. The primary difference being liars lie for some sort of perceived advantage; bullshitters don’t care about truth or lies at all, they just want to fill the space with shit.

    • Taxesmycredulity says:

      Andrew Weissmann was in Dearie’s courtroom today and noted that TFG’s attorney Trusty always referred to his client as the President.

      • Savage Librarian says:

        Trump and Trusty probably admire their own and each other’s names. I could imagine Trump picking Trusty because of his name. It serves a dual purpose:
        1. It projects a wishful concept
        2. It’s something he hopes to re-lie on

      • Yorkville Kangaroo says:

        It’s protocol to honor former Presidents as President X.

        It’s NOT protocol to refer to anyone other than the current Executive as THE President because they ain’t.

  8. Paulka says:

    I am neither as smart as Marcy, nor as learned as the appellant lawyers she defers to, but the whole argument regarding the DoJ being unable to appeal smells like bullshit to me. For a party to argue that the 11th doesn’t have jurisdiction given the judge shopping that Trump did and the flagrant issues with Cannon’s rulings and the “special case” considerations for Trump makes that argument patently absurd.

    But of course, this will be enough for the 11th to hang their hat on.

    • nedu says:

      I just want to flag a very basic definitional issue here regarding “jurisdiction” that some folks might not be aware of.

      To provide a teensy amount of authority for the existence of this definitional issue, I’m just going grab a semi- well-known quote from a completely unrelated and probably totally irrelevant case.

      “Jurisdiction,” it has been observed, “is a word of many, too many, meanings.”

      (Steel Co v Citizens for Better Environment (1998), quoting United States v Vanness, n.2 (D.C. Cir. 1996).)

      Now, if someone wants to criticize me for grabbing that quote out of context, go right ahead. Context is absolutely critical.

      (In this particular instance, I’ve already done enough other reading to feel confident in just flagging the existence of the broad issue with that semi- well-known quote… even though I’d rather listen than talk about “equitable jurisdiction” versus, say, “appellate jurisdiction” in the precise set of contexts at hand.)

  9. Amicus says:

    The Trump response is so bad and so riddled with falsehoods it is difficult to know where to begin. But there are simplifying steps, I believe. As Judge Dearie correctly pointed in the Special Master proceeding, Trump is the plaintiff and has the burden of proof. But plaintiff’s need something else: they need Article III standing. Standing has three basic requirements: (i) a cognizable injury that is not speculative; (ii) fairly traceable to the defendant’s conduct; and (iii) subject to remediation. In the judicial action before Judge Cannon, Trump should be found not to have an Article III injury. Let’s focus first on the possessory interest claim. Trump claims (at 10) that neither side has presented proof with respect to the ownership issue of this set of documents. That is irrefutably false. DOJ submitted a sworn document that states the USG seized over 100 documents with classification markings. Those are the documents at issue. That evidence is unrefuted. And it is corroborated with a photograph – a now world famous photograph. (Trump’s attorney’s have not challenged the authenticity of the photograph.) It is likewise consistent with the search warrant and accompanying affidavit establishing probable cause based on evidence known to the USG that such documents would be found at Mar-a-Lago. As the DOJ pointed out in its filings these classified documents cannot be personal documents. They are government documents and Trump has no interest in these documents with respect to the DOJ criminal investigation. Trump’s claim that he has an unfettered right to access these documents under the PRA is both false and irrelevant. He has not invoked the process of the PRA, and the PRA itself (and/or regulations) afford the archivist the ability to refuse access for sundry reasons – like an ongoing criminal investigation. Trump likewise makes no claim of privilege with respect to these documents (other than a misleading footnote about the documents provided in response to the grand jury subpoena). He fails to address, let alone surmount the USG’s argument that claims of executive privilege do not run against the executive, and makes no showing that any of the classified documents are attorney-client privileged. He simply has no interest/no right that has been invaded with respect to DOJ’s seizure of these documents that at this point in time provide him a cognizable injury for purposes of Article III. And the claim of reputational injury fairs no better. DOJ has provided ample authority, including Supreme Court authority, that having to bear the consequences of lawful criminal process does not give rise to a cognizable injury. Trump is no different in this respect than anyone else subject to a lawful search warrant and seizure.
    If the foregoing is correct, then Trump has no standing with respect to this set of documents (as opposed to the other seized documents which might contain personal items) and the court has no jurisdiction over these documents. That should obviate the Special Master issue. Regardless of whether Cannon could appoint a Special Master, she has no authority with respect to the set of documents bearing classification designations because Trump has no legal interest in these materials. Which is a long winded way of saying thieves don’t have a legal interest in what they stole.

    • Former AFPD says:

      TFG’s attorneys may have waived legal arguments they have not raised in this briefing and in earlier pleadings.

    • Amicus says:

      It occurs to me that there is another pathway. If the court of appeals simply treats this as a merits issue and finds that the uncontroverted evidence shows that these are classified government documents, and that there are no valid claims of privilege, then that should render the Special Master’s and district court’s review of these documents moot. I keep focusing on jurisdiction because it would be such a clean way to end Judge Cannon’s control over these documents, barring a different ruling from the Supreme Court.

      • nedu says:

        So why didn’t DoJ’s brief to the 11th Circuit say, “Judge Cannon is totally off her reservation, acting utterly ultra vires, and the Court of Appeals needs to halt this dead in its tracks right now as in yesterday if not sooner!” Why didn’t DoJ say that? In its request for a stay?

        • BrokenPromises says:

          nedu’s post certainly illustrates how such behavior would destroy a trial’s focus on facts and reason creating a denigration to emotional junk/ranting resulting in more than likely injustice.
          I can’t imagine how a jury could wade through that to find a path to ‘reasonable doubt’ or even what to believe from participants.

  10. L. Eslinger says:

    The chances of Judge Dearie being fired by Judge Cannon may have increased significantly this afternoon, since certain of his comments on classification contradicted her position (and, perhaps more tellingly, were not favorable to Trump).

    Per Politico (link below), Dearie rejected Trump’s argument to the Court of Appeals that it is the DOJ, not Trump, who bears the burden of proving seized documents were classified. Dearie reportedly remarked that all that mattered were the markings on the documents.

    https://www.politico.com/news/2022/09/20/trump-special-master-judge-mar-a-lago-00057805

    • earlofhuntingdon says:

      Ironically for team Trump, Dearie is playing the hand Cannon dealt him.

      Cannon set the timeline. And as Dearie reminded him, since Trump chose to be the plaintiff in a civil action, he’s the one who has to prove his case by a preponderance of the evidence. So far, he hasn’t provided jack shit. He just claims he could and thinks that’s enough. Not.

      • Former AFPD says:

        Typically short-sighted for TFG, rather than ironic. He’s unprepared for the realities and complexities of real litigation with experienced federal judges – just like the post election cases.

        • Desider says:

          A caveat – Trump does end-arounds. He is not out to “prepare for the realities…” or make sensible legal arguments – he is out to blow up the system, however that could be arranged. I don’t know what that means, but his getting Cannon on the case to begin with is an example. There might be others – he is tricky. Handle with care.

    • P J Evans says:

      The quote I saw was:
      Special Master to Trump lawyers: “If the government gives me prima facia evidence that they are classified documents, and you don’t advance any claim of declassification, I’m left with a prima facia case of classified documents, and as far as I’m concerned, that’s the end of it,”

      seen here: https://www.dailykos.com/stories/2022/9/20/2124131/-Dearie-me-Trusty-claims-the-National-Archives-is-a-political-entity-because-of-Trump-s-theft

      • Susan Kraemer says:

        “you don’t advance any claim of declassification”

        Surely declassification is not merely a “claim”? Isn’t it as carefully proscribed a protocol as the original classification marking? An official written, dated, witnessed marking on each document, also signed, dated, by the head of the originating agency for that intel? For one thing, once your spy is outed, don’t the agency heads have to tell HR to buy them their tickets out, and make all kinds of other arrangements?

        • earlofhuntingdon says:

          Dearie was using shorthand. Because this is a civil suit, Trump has the burden of proof to establish his claims. In the absence of him doing that, which he hasn’t even attempted to do, Dearie is entitled to accept defendant’s claim.

          That doesn’t reach what you bring up, which is what process would be sufficient to declassify each of these documents. Given their probable variety, there is likely to be more than one required process. If it ever gets to that, Trump would likely argue his “wave of the hand” theory of presidential declassification, which should go nowhere.

        • L. Eslinger says:

          Am diving into this (a sort of OCD thing) and haven’t found a full and satisfying answer yet, but two things are clear about the process of declassifying documents that can be declassified (not all can):

          1: it ain’t trivial

          2: it ain’t optional

  11. Arteberry says:

    As someone who has done a considerable amount of federal appellate work, I’m going to point out a few quick items that are interesting to me, though in the big picture I would not suggest these items will be the most important determinants of the final outcome. First, in the Trump brief to the 11th Cir., Evan Corcoran’s name has disappeared. I suppose it could be for a minor technical reason (not admitted to practice before the 11th Cir. … but he could easily deal with that if he wanted to.). Maybe Corcoran will still be involved in proceedings before Cannon, though I seriously doubt it. The reporting I’ve heard doesn’t have Corcoran being part of today’s hearing before Judge Dearie. Heavy bet here Corcoran is now officially toast as part of the Trump team. Surprised it took this long.

    Second, the Trump argument against staying the injunctive portion of Cannon’s order is ludicrous, a wonderful example of down-is-up, and consists mostly of copying and pasting the meaningless tag lines from Trump’s earlier brief (“preliminary steps to restore order from the chaos…”).

    Third, Trump does make a somewhat more sophisticated argument regarding the non-appealability of an order appointing a special master. But in the motion for stay, the DOJ is not immediately contesting the appointment. DOJ only contests the scope of the appointment and, particularly, asserts the need on national security grounds for interlocutory relief on the scope of the appointment. It will be interesting to see what the 11th Cir. will do with this item. It might allow the DOJ criminal investigation to fully proceed but not interfere in letting the special master look at the classified records. Fortunately, Dearie has already made it clear he is not feeling the need to see the classified records. My guess is that if the 11th Cir. grants the government even partial relief, the specter of some “adult supervision” may be enough to stop Cannon from overriding whatever Dearie does.

    • timbo says:

      Imagine what the appeals panel might rule that would delay things even more. That’s what Team Twitler is trying to do here—delay.

    • Peterr says:

      Dearie’s use of “prima facia” is about as literally true as could be, rather than a more general term of art. On the face of each of the documents in question, there are classification markings.

      Whether the documents were or were not declassified, while interesting in other contexts, matters not in this context. The documents fit the terms of the search warrant, and whether classified or not, they belong to the government. Dearie seems to recognize this, and thus does not see any reason for him to look at the documents in question beyond that.

      From his FISA court days, he understands “need to know” a helluva lot better than Trump’s lawyers appear to.

      • bbleh says:

        “…he understands “need to know” a helluva lot better than Trump’s lawyers appear to.”

        That one actually cracked me up. I can see a few seconds of silence as various people who DO understand it glance around at each other with “did I hear that right …?” thought-bubbles over their heads.

        And all the while there is the real danger of ongoing damage to national security interests, including people’s LIVES.

      • rdpayne says:

        A long, long time ago I had training about handling classified documents. My memory may be incorrect, but I did ask a couple of questions and what I remember is this: When document is declassified all copies of the documents that have classified marking must be returned to the owning agency for destruction so that we don’t have a bunch of copies out in the wild marked classified. I think I also remember that copies marked classified are still classified anyway and any copy that is made of a document that has classified markings is automatically owned by the government.
        It was a long time ago and I my remember it incorrectly and things may have changed.

      • Seashell says:

        Sorry, Rayne. I didn’t see the other requests. Henceforth and forever more, I shall be Seashell, (unless you say no).

        Many thanks to Empty Wheel for this wonderful site and to the mods for keeping it that way.

        [Thanks for the heads up on the username change. Henceforth thou shalt be known as ‘Seashell’ in the emptywheel community. :-) /~Rayne]

    • Arteberry says:

      My bad … I just saw a picture of Corcoran attending the hearing in Brooklyn today. So he may not be out of the Trump team. He keeps hanging on — the ultimate dingleberry.

      • Former AFPD says:

        Arteberry, Thank you for your many thoughtful and plain written analyses of the pleadings. The idea of doing so makes my head hurt. So Corcoran is still there. I remain amazed and puzzled by his continued involvement in this litigation. You?

  12. waban1966 says:

    How does the Trump team possibly submit evidence of declassification? They will need an affidavit (unless Judge Cannon removes Judge Dearie). There is no document. They assert a blanket/standing order to declassify, and other oral directives “that were not implemented by the bureaucracy [read Deep State].”

    As DOJ (and MTW) point out, the June turnover in a classified information type container undercuts the credibility of a Trump or Kash Patel affidavit. So does prior noncompliance with the GJ subpoena.

    Question: does anyone think that Judge Dearie has the authority to order Trump and Patel to submit for a one-hour deposition each, to test credibility of any affidavit? What have other SM’s done when there is some factual dispute?

    Worse for Trump, the ACLU FOIA lawsuit in Massachusetts federal court seeking the “blanket declassification order” includes FOIA response letters from a number of Intel Community agencies (albeit not all). At least some of those letters say there are no responsive records (i.e. no blanket declassification order). That I think is admissible hearsay (FRE803(7) and/or (10)) that there is no order.

    That said, Trump can file under seal vague assertions about the basis for declassification. That means another go-around with more delay. Which is really all that Trump needs/wants. In other contexts where speed is key this delay tactic gets handled by requiring the party to attach its evidence at the time it asserts a position. Whether Judge Dearie sets an evidentiary deadline early, or does it in two steps (which is the more traditional litigation approach), will matter a lot.

    At this point it seems realistic that they go back to Judge Cannon for a removal of the SM, on grounds that Judge Dearie is contradicting Judge Cannon’s order. Yes it could upset Judge Dearie, but that horse is now out of the barn. With a removal motion pending, Trump can say he doesn’t have to do anything until that is resolved. And Judge Cannon can delay any decision.

  13. TimB says:

    Very smart reporting. Appellate attorneys and judges value “clearing out the underbrush” of arguments made below to expose the key issues to be decided on appeal. Marcy, your outline/summary of the briefs does exactly that. Very helpful to understanding.

  14. Rugger9 says:

    Maybe it’s temporary insanity, but every time I see ‘Dearie’ I think of Captain Darling from Blackadder. However, with fulsome apologies to the judge, he’s pretty much hit the nail on the head of Individual-1’s coffin. It is also what I expected from a FISC judge who would know his way around classification and likely know his way around the risks to national security. He’s not likely to buy what’s being peddled here.

    It is rather fascinating how little homework is being done by TFG’s legal team (less Corcoran, apparently, h/t Arteberry) if they were going to be OK with Judge Dearie, unless the idea was to force Judge Cannon to overrule the freshly appointed Special Master. This plan has more validity behind it when one considers the real plot was to drag things out past the midterm elections (and hopefully past seating the new Congress in January 2023). Even though I think it doubtful the Special Master will support Individual-1, he did manage to waste a couple months of time.

    The other problem for Individual-1 is that this is not the only litigation show going, between DA Willis in GA, and AG James in NYS, plus some other stuff coming from the J6SC and potentially DoJ which will not be affected one whit by the grandstanding in SDFL.

  15. Spencer Dawkins says:

    Under “Trump Response”: The government hasn’t proven the documents are classified [The government’s argument holds even if the documents are only marked classified]

    And to think that I live in an age where that statement could happen in judicial proceedings …

  17. Alan Charbonneau says:

    My favorite part:
    “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.”

  18. earlofhuntingdon says:

    I imagine Judge Cannon is now drafting her opinion about how many ways Judge Dearie is wrong in actually acting like a judge.

    • Bittersweet says:

      I imagine her in deep consultation with the Federalist Society about what she should do next. Multiple telephones in her hands like the famous photo of Humphrey.

    • Rugger9 says:

      Indeed, but as I noted above, Cannon will need to employ the most creative pretzel logic to let Individual-1 get his ‘we don’t need no stinking badges’ defense into operation. IMHO this is more about time-wasting. The other thing Judge Dearie does to help TFG’s team is to highlight the legal problems before Cannon overrules him and it’s off to the 11th Circuit CA.

      https://www.youtube.com/watch?v=VqomZQMZQCQ
      https://www.youtube.com/watch?v=e1lyNt5km8U

    • TXphysicist says:

      I imagine her leaning in, as she passes by him on the sidewalk, traveling the same way, and whispering, “Pssst! You know it’s 2022 and we can do or say anything, right? Long live emperor Donald”

  19. Troutwaxer says:

    So we’ve got a corrupt judge frantically violating every law, rule and precedent imaginable, while ruling in the wrong court, and attempting to give one of Earth’s scummiest humans immunity for stealing classified documents and storing them improperly…

    Is it RICO yet?

  20. Mister Sterling says:

    Team Trump got the special master they wanted, and so far, it is backfiring on them after 3 weeks of unprecedented victories in slowing down a national security-related criminal investigation. Cannon might have no other choice but to let Dearie return with the logical conclusion we all said a competent special master would produce. I can’t see her firing Dearie. If Dearie can’t help Trump no one can. And Cannon’s involvement in this case is finite. She won’t be the judge if and when the indictments come. She can say she tried and then step aside. Dearie is rescuing her if he holds his position.

    • timbo says:

      Really? You don’t see Cannon, the judge that took on Team Twitler’s wonky civil suit and then started making rulings on things that the plaintiff (Twitler’s) counsel had not entered into the court record as some sort of warning sign here? Cannon will do what she wants to, and Dearie is nothing special in that regard. She’s already done all sorts of “unique” things on behalf of Trump in this so-called civil suit so why would Cannon stop when she specifically said she can remove Dearie without cause at anytime in her ruling setting up the Special Master position in the first place?

      • bmaz says:

        Who is “Twitler”? I am so sick of that petty garbage I want to vomit. Stop. You want to bandy such stupidity around, find your own website. But not here.

  21. Tom-1812 says:

    It seems to be a fool’s errand to look for logic, clarity, and consistency in Trump’s legal arguments when his main goal is to muddy the waters, gum up the works, and basically waste time while hoping the mid-term elections grant him a deus ex machina escape from his current predicament. Nevertheless, I don’t see how he can cast doubt on the classified nature of the documents he stole. Wasn’t he the President when they were classified? Weren’t they classified on his watch? And if he either will not or–more likely–cannot present legitimate evidence that he de-classified the documents, then they’re still classified.

    • Rugger9 says:

      I think as a matter of law there is no question these are classified documents and are identified as such. They are also NDI for Espionage Act purposes (which doesn’t require classification as an element). There is the nuclear information subject to NRC control and not just POTUS. So, that’s not going to work unless Individual-1 can show the records of declassification and the notices to the originating agencies regarding the dropped protections. They have actions they need to take as a consequence of declassification on any document.

      Recall how Individual-1 viewed his powers, i.e. the infamous Article II claim that ‘I can do anything I want’ which means he may think these are declassified because he said so, and his minions would not dare to discourage him. That concept would also apply to taking the documents out of the controlled environment to his estates. Contradicting that idea is Hershmann’s unambiguous (and probably the Two Pats as well) reminder that when it comes to classified docs TFG couldn’t do whatever he wanted. I don’t recall Eric H or the Two Pats signing off on any of these document movements. I would expect that TFG went with the people who told him ‘Yes’.

  22. Jenny says:

    Thank you Dr. Marcy. I appreciate your expertise which helps me to understand the legal material with ease.

    After reading your material, I was listening to NPR, Terry Gross interviewing Geoffrey Berman . I realize this is off topic, however very interesting about the SDNY.
    https://www.npr.org/podcasts/381444908/fresh-air
    SEPTEMBER 20, 2022
    How Trump’s DOJ Pressured The SDNY To Aid The White House
    Geoffrey Berman served as U.S. Attorney in the Southern District of New York. In his memoir, Holding the Line, he describes how the Dept. of Justice demanded he use his office to aid the Trump administration. “The Department of Justice has to remain independent of politics,” Berman says. “It’s supposed to be unbiased. And what happened was President Trump treated the Department of Justice like his own personal law firm, and he put people in charge there who did his bidding.”

    • Rugger9 says:

      It’s part of the ‘there’s an Article II and I can do what I want’ mindset combined with the need to bury evidence. So, of course Individual-1 did and he ran off uncooperative AGs until he got Barr.

  23. Leoghann says:

    Now it’s being reported by CNN that DOJ has won its stay of Judge Cannon’s order from the 11th Circuit Court of Appeals.

Comments are closed.