Late breaking news today, CNN reports DOJ can resume criminal probe of classified documents from Mar-a-Lago, appeals court says:
A federal appeals court is allowing the Justice Department to continue looking at documents marked as classified that were seized from former President Donald Trump’s Mar-a-Lago home and resort.
Read the Per Curiam opinion of the court.
It’s refreshing to read the Eleventh Circuit’s unanimous 29-page demolition of Trump’s (and Judge Cannon’s) ludicrous evasions of settled law and indisputable fact. It reads a lot like a stern but polite reprimand of a child caught red handed who needs to be read the riot act. https://t.co/6CU7XmlbCs
— Laurence Tribe (@tribelaw) September 22, 2022
The emergency intervention upends a trial judge’s order over those documents that blocked federal investigators’ work on the documents, and is a strong rebuke of the Trump team’s attempt to suggest without evidence that materials were somehow declassified.
A special master’s review of that subset of about 100 records, which would’ve allowed Trump’s legal team to see them, is now partially stopped. The special master, Judge Raymond Dearie, is able to continue his work reviewing the rest of the material seized from Mar-a-Lago, to make sure records belonging to Trump or that he may be able to claim are confidential aren’t used by investigators.
“It is self-evident that the public has a strong interest in ensuring that the storage of the classified records did not result in ‘exceptionally grave damage to the national security,'” the three-judge panel from the 11th US Circuit Court of Appeals stated. “Ascertaining that necessarily involves reviewing the documents, determining who had access to them and when, and deciding which (if any) sources or methods are compromised.”
Court rebukes Trump on declassified claims
Throughout the litigation, Trump’s lawyers have raised vague questions about whether the materials are in fact classified. But they have not straightforwardly asserted in court that the former President declassified them, even as Trump himself has claimed outside of court that he did.
Wednesday night, the appeals court panel called Trump’s legal team out.
“Plaintiff suggests that he may have declassified these documents when he was President,” the court wrote. “But the record contains no evidence that any of these records were declassified. And before the special master, Plaintiff resisted providing any evidence that he had declassified any of these documents.”
Trump’s lawyers have also sought to put off making any specific disclosures about whether the documents had been declassified while the special master initially reviews the materials.
“The records’ classification markings establish that they are government records and that responsible officials previously determined that their unauthorized disclosure would cause damage — including ‘exceptionally grave damage’ — to the Nation’s security,” the prosecutors had told the 11th Circuit in a Tuesday night filing.
The Justice Department had asked for the 11th Circuit’s intervention in the Mar-a-Lago documents dispute after Trump successfully sued to obtain the appointment of a special master — an independent attorney — to pour through the roughly 11,000 documents the FBI obtained in its search of Trump’s home.
US District Judge Aileen Cannon, the Florida judge who granted Trump’s bid for the review, previously declined a Justice Department request that she pause the parts of her order that applied to the 100 documents identified as classified.
None of the three criminal statutes the FBI cited when it obtained the Mar-a-Lago search warrant hinge on the materials being classified, DOJ argued.
In seeking to restart its criminal investigation into the documents, the Justice Department argued that Cannon’s order was hindering investigators from taking steps to assess and mitigate national security risks posed by how the documents were handled.
Cannon said that a national security assessment of the materials being conducted by the intelligence community could proceed. However, the Justice Department argued that that assessment could not be decoupled from the criminal investigation.
Not Trump’s records
The 11th Circuit resoundingly rejected Trump’s arguments that he may have an interest in classified records that could keep them from federal criminal investigators.
Trump “does not have a possessory interest in the documents at issue, so he does not suffer a cognizable harm if the United States reviews documents he neither owns nor has a personal interest in. Second, we find unpersuasive Plaintiff’s insistence that he would be harmed by a criminal investigation,” they wrote.
“Because of the nature of the classified materials at issue here and based on the record, we have no reason to expect that the United States’ use of these records imposes the risk of disclosure to the United States of Plaintiff’s privileged information,” they wrote.
This is a developing story.
Eleventh Circuit Rule 35-4 expressly prohibits en banc reconsideration of panel rulings on applications for stays.
— Steve Vladeck (@steve_vladeck) September 22, 2022
Donald Trump ran to his chief propagandist at Fox News, Sean Hannity, and made this insane claim. Trump Claims a President Can Declassify Documents Just ‘By Thinking About It’:
Donald Trump claimed the president of the United States can declassify government documents simply by declaring them as such, or “even by thinking about it.”
Omg he’s actually invoking the Secret Telepathic Unilateral Preemptive Irreversible Declassification (S.T.U.P.I.D.) defense https://t.co/moq1paUS5B
— Asha Rangappa (@AshaRangappa_) September 22, 2022
The next argument will be:
“If you’re president just by thinking you’re not guilty you become not guilty. It’s a special power — “a superpower, many people are saying.” https://t.co/1xziHK5j1s
— Laurence Tribe (@tribelaw) September 22, 2022
Appearing on Wednesday’s Hannity, Trump told Sean Hannity he declassified the documents and that there isn’t much to the process – or lack thereof – as he understands it.
“A president has the power to declassify,” the Fox News host stated. “You have said on Truth Social a number of times you did declassify.”
“I did declassify, yes,” Trump said.
“Is there a process?” Hannity asked. “What was your process?”
“There doesn’t have to be a process as I understand it,” Trump replied. “If you’re the president of the United States, you can declassify just by saying, ‘It’s declassified,’ even by thinking about it because you’re sending it to Mar-a-Lago or wherever you’re sending it. And there doesn’t have to be a process. There can be a process but there doesn’t have to be. You’re the president. You make that decision. So when you send it, it’s declassified. I declassified everything.”
The Department of Justice and many legal experts dispute Trump’s claim.
“There’s no indication that Trump actually ever declassified these documents,” explained former White House counsel for ethics Norm Eisen on CNN on Tuesday. “The reason [Trump’s] lawyers have never said in a court filing that the documents were declassified is because they would be subject to penalties themselves, ethics penalties, penalties of the court if they said something that isn’t true.”
Former Trump White House communications director Stephanie Grisham said there is in fact a process for declassifying such material.
“You don’t just say the words, ‘These are now declassified,’ and it’s done. There is a process. And more importantly, people, agencies would need to be told,” she said. “The CIA, the DOJ, the FBI, the people who have sources and methods out there. They would need to know that, ‘Hey, these documents are suddenly declassified,’ so that they can move those sources around.”