Calvinball
Yesterday at 7:39PM, the 11th Circuit denied Walt Nauta and Carlos De Oliveira’s bid to enjoin the Jack Smith report. But the unsigned order did not tell Aileen Cannon to fuck off. Instead, it invited DOJ to appeal her decision.
ORDER:
Appellees’ “Emergency Motion for Injunction with Relief Requested by January 10, 2025” is DENIED.
To the extent that Appellant seeks relief from the district court’s January 7, 2025, order temporarily enjoining Appellant, Appellant may file a notice of appeal from that order.
DAVID J. SMITH Clerk of the United States Court of Appeals for the Eleventh Circuit
ENTERED FOR THE COURT – BY DIRECTION
DOJ did appeal; their appeal hit Judge Cannon’s docket around 11:04PM.
NOTICE OF APPEAL by USA as to Donald J. Trump, Waltine Nauta, Carlos De Oliveira Re: 682 Order. Filing fee $ 605.00. USA/FPD Filer – No Filing Fee Required.
Just after midnight, DOJ filed a notice of appeal to the existing 11th Circuit docket.
Earlier this evening, January 9, this Court denied defendants’ emergency motion to enjoin the Attorney General from publicly releasing any portion of the Final Report of the Special Counsel. The Court further indicated that, “[t]o the extent that Appellant seeks relief from the district court’s January 7, 2025, order temporarily enjoining Appellant, Appellant may file a notice of appeal from that order.”
We write to notify the Court that the United States has tonight filed a notice of appeal from the district court’s order of January 7, 2025. See Dkt 686. As the Court knows, that order temporarily enjoined the Department of Justice, the Attorney General, the Special Counsel, and others from releasing or sharing the Special Counsel’s Final Report “outside the Department of Justice” pending this Court’s ruling on defendants’ emergency motion. Dkt. 682 at 2. The district court specified that this prohibition would “remain[] in effect until three days after” this Court’s resolution of defendants’ motion in this Court. Id
[snip]
Given the unusual exigencies of this case, as illustrated by the emergency motions practice in both the district court and this Court, the United States respectfully renews its request that this Court promptly vacate the district court’s temporary injunction.1
1 The government’s notice of appeal, filed tonight, squarely invokes this Court’s appellate jurisdiction. As soon as the new appeal is docketed in this Court, the United States intends to move to have that appeal consolidated with this one. To the extent there is any doubt concerning the Court’s authority to review the temporary injunction, furthermore, we respectfully request that the Court construe our appeal as a petition for a writ of mandamus. See Suarez-Valdez v. Shearson Leahman/American Express, Inc., 858 F.2d 648, 649 (11th Cir. 1988) (holding that appeal can be construed as a petition for mandamus if the Court harbors doubts as to its appellate jurisdiction).
They renewed their request to tell Cannon to fuck off, and asked them to treat this as a writ of mandamus in the meantime.
Because the 11th Circuit order is unsigned, it’s really difficult to understand what whatever judges involved intend by this muddle — besides giving Nauta and De Oliveira a shot at appealing to SCOTUS on the very narrowed question before the 11th Circuit: whether they can prohibit Merrick Garland from doing anything given it will cause them no harm.
By inviting DOJ to appeal, they have squarely invoked the 11th Circuit’s appellate jurisdiction, meaning Cannon should be barred from meddling any more (not like that ever stopped her).
And if SCOTUS does nothing before 7:39PM on Sunday, then Garland can do what he says he wants: release the January 6 report and share the documents report with the Chairs and Ranking members of the Judiciary Committees.
But if DOJ files their appeal, then the 11th Circuit can weigh in on Cannon’s far more expansive demands.
There are at least hints here that DOJ is going to take steps to share the reports one way or another.
Until then, we’re waiting to learn how this game of Calvinball will turn out.
Garland and the DOJ should recommend that Cannon be impeached immediately for impersonating a judge
Do you know if members of Congress have received access to the Jan 6th report yet? And is there anything that would prevent them from commenting in general about what they’ve read?
When I was admitted to practice in the SDNY in 1973, we took the process and especially the appellate process very seriously. A demented humanoid life form like Cannon finding her way into judicial robes was beyond our wildest imaginings.
I think they did this to strip her of jurisdiction. Her order says that the original emergency motion (the one in the district court) remains pending.
It may technically remain pending, but she should be unable to act upon it or revise her prior order. DOJ has appealed that order to the 11th Circuit and that should divest her of jurisdiction. So, the clock runs out unless the 11th acts or the defendants seek emergency relief with the Supreme Court.
I agree that’s true. But why didn’t they just tell Cannon to fuck off?
Why not? My guess [which is worth nothing] is it was a political choice. Cannon is now a special friend of the incoming President and Clarence Thomas remains the Justice responsible for 11th Circuit.
The clock is going to run out WHEN the 11th acts and WHEN the defendants seek emergency relief with the Supreme Court. But the clock is January 20th. You can bank on the relief being filed today from Nauta and De Oliveira. I hope I’m wrong but my sense is that John Roberts allowed the NY sentencing to continue because he knows his corrupt court is going to take the heat here when they help run out the clock until the new DOJ smothers this.
I hate to say this, but I suspect the motives of everyone on the GOP side right now. While democrats operate according to normal-people-respect-laws-and-norms rules, the GOP is operating according to Trump rules. If Biden, Garland, and Smith played by Trump rules, they’d just release the report(s) with a pardon for anyone in legal jeopardy because of the release. It aint cricket, but nothing is these days.
On a slightly different note, Roberts is Chief Justice, Thune is Majority Leader, and Johnson is Speaker. They probably think they have power because they occupy these positions. They had better start exercising that power in ways that demonstrably oppose Trump or they’ll soon discover they don’t have any. Sure they’ll agree with him on many issues, but they have prerogatives, or think they do. Trump doesn’t give a damn about those prerogatives.
From any number of sources, this from Axios:
“President-elect Trump said late Thursday that a meeting is in the works with Russian President Vladimir Putin to discuss ending the Kremlin’s invasion of Ukraine…..Kremlin spokesperson Dmitry Peskov said Friday that the Kremlin had not yet received an official request for contact, Russian state news agency TASS reported…..However, Putin is prepared to meet with Trump without any conditions, Peskov added.”
This on top of the stolen/missing documents report being made public or not before The Felon Guy takes over.
Shades of Helsinki 2018 anyone?
Paging the person who wished to live in interesting times.
Why doesn’t DOJ now dismiss the cases against Nauta and deOliveira? I understood SteveBev’s argument to mean that–by keeping their cases alive–DOJ retains an option to argue the validity of the SC’s appointment. But won’t the opportunity for that quest also expire on 20 January when the new administration takes over?
Yes, that is what Benjamin Wittes at Lawfare has suggested – dismissing the case:
And it seems to me that the Justice Department, at the special counsel’s apparent urging, is making the wrong decision.
In real world terms, not releasing the report while the litigation is pending means not releasing it (at) all.
The reason is that Trump will presumably pardon Nauta and De Oliveira or order their cases dismissed. So the cases won’t be pending for long, and the decision on Attorney General Merrick Garland’s part to hold the report to protect the integrity of the cases almost certainly will not serve to protect them in practice.
It likely will, however, mean that the public never sees the report in question. A Justice Department run by Pam Bondi and Trump’s former lawyers, after all, will have no interest in then releasing the remaining portions of Smith’s report.
So just as posterity has an interest in Trump’s New York case being recorded and appealed as a conviction, it has an even stronger interest in the classified documents’ report becoming public.
…in my opinion, the Justice Department would do well to drop the cases against Nauta and De Oliveira in order to free itself up to release the report. This would mean, in practice, that Trump’s co-defendants would be free from criminal process a few days earlier than they would if the case remains pending until pardons or Bondi make it go away. The flip side, however, is that proceeding in this fashion would avert a lengthy struggle to enable transparency vis a vis the report.
https://www.lawfaremedia.org/article/the-situation–ending-the-trump-cases-the-right-way
But as Marcy pointed out, and I accepted that I hadn’t fully thought through —
a possibly necessary implication of Cannon’s dismissal of the case against the 3 defendants, on the grounds of unlawful appointment,
is that all the work of the SC is tainted by illegality,
and any further publication of evidence gathered illegally (on this theory) together with explanations justifying the SC actions against the defendants is a further infringement of their constitutional rights and protections.
So any action which has the effect of leaving Cannon’s dismissal ruling undisturbed has those deleterious consequences for the report, and/or the publication thereof.
Yes and in other words the worst of all worlds, DOJ moves to dismiss and still can’t publish the report.
Evidence gathered illegally…. about TS/SCI gathered illegally, stored illegally, withheld from rightful owner illegally, shared illegally….
Calvinball it is.
Is it Calvinball? Or is it TEGWAR?
It’s Calvinball, not tegwar. There are two rules: who ever holds the ball (the White House) makes the current rule, and the game is never played the same twice. They’ve even ditched the masks.
Ooooooohhhhh! NOW I get it! lol
Garland could release the report and Joe could pardon him for violating Cannon’s Order. But Garland won’t do that.
Basic question: Can a president pardon a contempt of court ruling? I can’t see the conduct being sanctioned as a crime against the US.
Biden could pardon Garland for releasing the report. But Trump as president will continue asserting that 2020 was stolen, and Trump’s underlings and followers and a compliant media will continue echoing that, thus reifying it as an alternate cultural, social, and when possible even a legal reality, e.g., resolutions that simply assert it to be true. Under that that imposed reality, Biden’s pardon of Garland, or Hunter, or anyone else, along with every other action Biden took subsequent to the stolen election, is simply not valid, as they were not performed by an legally elected and sworn in sitting president. In this reality, Biden was nothing but the front man for a fraud and a hoax perpetrated by the Dems, the deep state, what have you, the like of which we’re never seen. Isn’t that how it works?
2020 election fraud! Trump was right!
https://www.inquirer.com/crime/philip-pulley-voter-fraud-probation-20250109.html
Wait, he’s a rich white Republican slumlord just like Trump? Never mind… just wait’ll you see the size of Trump’s inauguration crowd!