On Friday, the Department of Justice filed an appeal to the 11th Circuit Court of Appeals seeking an emergency stay of Judge Aileen Canon’s dangerous ruling in the Trump clssified documents case.
Reuters reports, U.S. Justice Dept asks appeals court to allow review of classified docs in Trump probe:
The U.S. Justice Department on Friday asked a federal appeals court to let it resume reviewing classified materials seized in an FBI search of former President Donald Trump’s Florida estate.
In the filing before the U.S. Court of Appeals for the 11th Circuit, the Justice Department said the circuit court should halt part of the lower court decision that prevents prosecutors from relying on the classified documents in their criminal investigation into the retention of government records at Trump’s Mar-a-Lago residence in Palm Beach after his presidency ended.
The department also asked that a third party [Special Master] appointed to examine all the records taken in the federal raid at Trump’s part, Senior U.S. Judge Raymond Dearie, not be permitted to review the classified materials.
The government asked the appeals court to rule on the request “as soon as practicable” [i.e., emergency basis.]
In the unprecedented search of the former president’s property, the Justice Department has said it is investigating the retention of government records – some marked as highly classified, including “top secret” – as well as obstruction of a federal probe.
The Justice Department must now convince the Atlanta-based appeals court, with a conservative majority, to take its side in litigation over the records probe. Trump appointees make up six of the 11 active judges on the 11th Circuit.
Note: The media has made much of the fact that six of the eleven judges on the 11th Circuit were appointed by Trump. First, this assumes that all six Trump appointees will be as corrupt as Judge Aileen Cannon; I do not accept this, based upon the 11th Circuit having rejected Trump’s frivolous lawsuits to set aside the 2020 election. Second, the full circuit court will not rule on the request for a stay. It will be randomly assigned to a three judge panel which, more than likely, will include senior judges on the circuit who were not appointed by Trump. Finally, Judge Cannon’s order is so detached from law and precedent, it is hard to imagine that these judges will not grant a stay in a national security matter.
The government’s motion comes after U.S. District Judge Aileen Cannon on Thursday rejected the same requests from the Justice Department.
Cannon, whom Trump appointed to the bench in 2020, had said she would tell Dearie, who is filling the role of a “special master” in the case, to prioritize the classified records in his review, which she set a Nov. 30 deadline to complete.
There were roughly 100 classified documents among the 11,000 records gathered in the FBI’s court-approved Aug. 8 search at the former president’s Mar-a-Lago resort.
If Cannon’s ruling stands, experts said, it would likely stall the Justice Department investigation involving the government records.
The government’s Friday filing at times directly took issue with Cannon’s prior decisions in the case. Prosecutors said the judge cited court papers from Trump’s lawyers that suggested the former president could have declassified the documents marked as classified, but those legal briefs stopped short of claiming Trump did so. [“It coulda happened” is not a legal defense.]
Trump claims he declassified Mar-a-Lago docs, but his lawyers avoid making that assertion.
“The court erred in granting extraordinary relief based on unsubstantiated possibilities,” the government lawyers wrote. [Damn straight she did!]
The Justice Department also criticized Cannon’s direction that classified records be disclosed to Dearie and Trump’s lawyers as part of an outside review of all records taken in the search, and described the former president’s attorneys as potentially being witnesses to “relevant events” in the criminal probe.
The department is also looking into possible obstruction of the probe after it found evidence that records may have been removed or concealed from the FBI when it sent agents to Mar-a-Lago in June to try to recover all classified documents through a grand jury subpoena.
Trump’s lawyers had opposed the government’s latest requests to Cannon, telling the judge in a Monday filing they dispute the government’s claim that all the records are classified, and that a special master is needed to help keep prosecutors in check.
Trump’s attorneys instigated the litigation over the records investigation last month, seeking a third party to go over the materials taken by federal agents and determine if any should be shielded from investigators. The former president’s legal team argued that some materials could be covered by attorney-client privilege or executive privilege – a legal doctrine that can shield some presidential records from disclosure.
Cannon granted that request in a Sept. 5 ruling, rejecting Justice Department arguments that the records belong to the government and that because Trump is no longer president he cannot claim executive privilege. [A clear error of law, which shoud be overruled.]
Dearie said earlier on Friday he will hold his first hearing on the privilege review for the seized documents on Tuesday, at the federal courthouse in Brooklyn.
This is a meeting of the lawyers to discuss procedures in the case. I expect Judge Dearie will not review documents until the 11th Circuit has ruled on this stay request, out of respect for the Circuit Court. The 11th Circuit may very well grant the government’s emergency appeal, precluding a Special Master review.
UPDATE: The 11th Circuit is treating this as an emergency appeal with an expedited briefing schedule:
Very quick response from the Court of Appeals, which is a good sign for DOJ. https://t.co/vYd3nFCp7t
— Renato Mariotti (@renato_mariotti) September 18, 2022
This will establish Trump’s knowledge of the illegality and his criminal intent. The New York Times reports, “Trump Was Warned Late Last Year of Potential Legal Peril Over Documents”, https://www.nytimes.com/2022/09/19/us/politics/trump-herschmann-documents.html
[Deputy White House Counsel Eric Herschmann] under President Donald J. Trump warned him late last year that Mr. Trump could face legal liability if he did not return government materials he had taken with him when he left office, three people familiar with the matter said.
Herschmann, sought to impress upon Mr. Trump the seriousness of the issue and the potential for investigations and legal exposure if he did not return the documents, particularly any classified material, the people said.
The account of the conversation is the latest evidence that Mr. Trump had been informed of the legal perils of holding onto material that is now at the heart of a Justice Department criminal investigation into his handling of the documents and the possibility that he or his aides engaged in obstruction.
-Eric Herschmann gave the most compelling testimony to the January 6 Committee. He will now be the star witness in this Espionage Act prosecution. He shoud bring his “Justice” baseball bat with him from his J6 depositions.
Top former Republican officials spanning every Republican presidency back to Ronald Reagan have filed an amicus brief in support of the DOJ’s appeal on the Trump classified docs case.
Democracy 21 reports, “Former Republican Officials, Including Top Federal Prosecutors And DOJ Officials, Support Government’s Request For A Partial Stay In Mar-a-Lago Documents Case; Amicus Brief Filed In DOJ’s Emergency Appeal”, https://democracy21.org/news-press/press-releases/former-republican-officials-including-top-federal-prosecutors-and-doj-officials-support-governments-request-for-a-partial-stay-in-mar-a-lago-documents-case-amicus-brief-filed-in-doj
[T]he Government filed an emergency motion at the 11th Circuit Court of Appeals asking the Court to allow the Government full access to the approximately 100 classified documents for its criminal investigation and to not disclose those classified documents to a special master and Trump’s attorneys for their review.
The amici filing the brief are:
Donald B. Ayer served as Deputy Attorney General at the Justice Department (1989-1990), Principal Deputy Solicitor General of the United States (1986-1989); and U.S. Attorney for the Eastern District of California (1981-1986). He has argued 19 cases in the U.S. Supreme Court.
John B. Bellinger III served as the Legal Adviser for the State Department (2005-2009); Senior Associate Counsel to the President and Legal Adviser to the National Security Council (2001-2005); Counsel for National Security Matters in the Justice Department’s Criminal Division (1997-2001); Counsel to the Senate Select Committee on Intelligence (1996); General Counsel to the Commission on the Roles and Capabilities of the U.S. Intelligence Community (1995-1996); and Special Assistant to CIA Director William Webster (1988-1991).
Gregory A. Brower served as Assistant Director for the Office of Congressional Affairs and as Deputy General Counsel at the FBI; U.S. Attorney for the District of Nevada; and as both General Counsel and Inspector General at the U.S. Government Publishing Office. He also served five sessions in the Nevada Legislature, including as Chair of the Senate Judiciary Committee.
John J. Farmer Jr. served as an Assistant U.S. Attorney; New Jersey Attorney General; Senior Counsel to the 9/11 Commission; Dean of Rutgers Law School; and is currently Director of the Eagleton Institute of Politics. He also served on New Jersey’s Executive Commission on Ethical Standards, Advisory Committee on Judicial Conduct, and the State Commission of Investigations.
Stuart M. Gerson served as Acting Attorney General of the United States during the early Clinton Administration; as President George H.W. Bush’s Assistant Attorney General for the Civil Division of the Justice Department; as an advisor to several Presidents; and as an Assistant U.S. Attorney for the District of Columbia (1972-1975).
Peter D. Keisler served as Acting Attorney General of the United States during the George W. Bush Administration; Assistant Attorney General for the Justice Department’s Civil Division (2003-2007); Principal Deputy Associate Attorney General and Acting Associate Attorney General (2002-2003); and Assistant and Associate Counsel to President Ronald Reagan in the White House Counsel’s Office (1986-1988).
Alan Charles Raul served as Associate Counsel to the President (1986-1988); General Counsel of the Office of Management and Budget (1988-1989); General Counsel of the U.S. Department of Agriculture (1989-1993); and Vice Chairman of the White House (and, later, independent) Privacy and Civil Liberties Oversight Board (2006-2007, 2007-2008).
Olivia Troye served as Special Advisor to the Vice President for Homeland Security & Counterterrorism (2018-2020); Chief in the Department of Homeland Security (2016-2018); Senior Advisor to the Director of Intelligence & Counterintelligence for the Energy Department (2015-2016); Advisor to the Director of the National Counterterrorism Center (2007- 2010); and Advisor in the Department of Defense (2002-2007).
William F. Weld served as the U.S. Attorney for Massachusetts (1981-1986); Assistant U.S. Attorney General in charge of the Justice Department’s Criminal Division (1986-1988); and Governor of Massachusetts (1991-1997).
Christine Todd Whitman served as Governor of New Jersey (1994-2001); Administrator of the Environmental Protection Agency during the George W. Bush Administration (2001-2003); and serves on a number of nonprofit boards including the Board of Trustees’ Executive Committee of the Eisenhower Fellowships and as Chair of the American Security Project.
(The amici joined this brief as individuals. Institutional affiliation is noted for informational purposes only.)
Collectively, these individuals have decades of experience advising on matters involving the proper scope of executive power and executive privilege or prosecuting cases involving sensitive or classified materials.
The amicus brief, filed in Donald J. Trump v. United States of America in the U.S. Court of Appeals for the 11th Circuit sets forth three reasons why the Justice Department’s motion for a partial stay should be granted.
According to the amicus brief:
First, the District Court erred in holding that former President Trump could under any circumstances prevail as to the approximately 100 classified documents at issue in the Justice Department’s appeal. Those documents are the property of the U.S. Government.
Former President Trump, according to the brief, “has no right to possess the 100 or so classified records at issue here because no private citizen has a ‘possessory interest’ in the U.S. government’s classified records.”
“This proposition is not controversial,” the brief notes, “even former President Trump’s own brief opposing the Government’s request for a stay did not argue he has a possessory interest in classified documents.”
Because these documents belong to the U.S. Government and former President Trump has no right to possess them, the brief notes, “there is nothing for the special master to do” in regard to the classified documents.
Second, the appointment of a special master was clearly improper at least insofar as the special master was empowered to decide claims of executive privilege. Executive privilege, the brief notes, cannot be asserted – as former President Trump proposes – against the Executive Branch itself.
That is particularly true in this matter, the brief notes, where the Executive Branch has sought the return of its own classified records – records that belong to the U.S. Government – in connection with its ongoing core executive and national security functions.
The appointment of a special master was, the brief notes, “legal error. This error is most egregious in regard to the 100 or so classified documents.”
Executive privilege, according to the brief, “is based on the need for confidentiality in communications and deliberations with the President in the exercise of executive functions. … [I]t would be an especially bizarre perversion of the privilege to allow a former President to use it to thwart a core executive function like a criminal investigation into mishandling of classified information.”
Further, the brief once again emphasizes, any records subject to executive privilege belong to the U.S. Government, not to former President Trump.
Third, a former President is entitled to no greater protection under the law than any other citizen.
The District Court’s analysis, the brief points out, “which gave greater weight to the reputation of a former President than to the reputation of any other citizen, and greater weight to that personal reputation than to national security concerns, is fundamentally inconsistent with the basic tenets of U.S. law.”
In addition, the brief states, concern for reputational harm that the District Court noted in its decision is not a valid basis for enjoining a criminal investigation, “especially one that is inexorably intertwined with a national security damage assessment.”
There is no basis, according to the brief, for applying a different rule to former President Trump, “effectively endowing him with greater procedural rights than those afforded to other citizens.”
To do so, the brief continues, would belie the fundamental principal established in United States v. Lee (1882), that “[a]ll the officers of the government, from the highest to the lowest, are creatures of the law and are bound to obey it.”
The amicus brief is available online here [https://democracy21.org/wp-content/uploads/2022/09/2022.09.16-Motion-for-Leave-to-File-Amicus-Brief-and-Proposed-Amicus-Brief.pdf] and was prepared by co-counsels, Paul, Weiss, Rifkind, Wharton & Garrison LLP; Ambassador Norman Eisen (ret.); and Democracy 21 President Fred Wertheimer.
Busted! The Washington Post reports, “Trump team [falsely] claimed boxes at Mar-a-Lago were only news clippings”, https://www.washingtonpost.com/national-security/2022/09/16/trump-records-archives-clippings/
Months before National Archives officials retrieved hundreds of classified documents in 15 boxes from former president Donald Trump’s Mar-a-Lago Club, they were told that none of the material was sensitive or classified and that Trump had only 12 boxes of “news clippings,” according to people familiar with the conversations between Trump’s team and the Archives.
During a September 2021 phone call with top Archives lawyer Gary Stern, former deputy White House counsel Pat Philbin offered reassuring news: Philbin said he had talked to former White House chief of staff Mark Meadows, who made the assertion about the dozen boxes of clippings, the people familiar with the call said. Trump’s team was aware of no other materials, Philbin said, relaying information he said he got from Meadows.
The characterization made in the call vastly misrepresented the scale and variety of documents, including classified records, eventually recovered by the Archives or the FBI.
Philbin said that Meadows also told him no documents had been destroyed, according to two people with knowledge of the call and a third person with knowledge of Stern’s contemporaneous account of the call. These and other people spoke on the condition of anonymity to disclose internal details.
-Looks like Mark Meadows and Donald Trump will be roomates at Club Fed, and a few lawyers may be in the next cell.