Thursday, September 29, 2022

Trump’s embarrassing defeat in the Mar-a-Lago “special master” case, Trump v. United States

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Allow me to summarize a decision of the Federal Court of Appeal remove a string of pro-Trump orders with a single scene from the 1995 failed comedy Billy Madison: As the appeals court decision makes clear, anyone who has read Judge Aileen Cannon’s decisions that benefit Trump is now less intelligent because he did this.

The United States Court of Appeals for the 11th Circuit’s decision in Trump v. United States Shreds former President Donald Trump’s efforts to delay a criminal investigation into classified documents seized by the FBI in his Florida hometown of Mar-a-Lago. It’s equally disdainful of Cannon, the Trump-appointed federal district judge in Florida who has ordered the Justice Department to halt, at least temporarily, this criminal investigation.

Notably, the appeal panel includes two other judges who, like Cannon, have been appointed by Trump. But these two Trump judges don’t give Cannon a dime. Their opinion identifies more than a dozen legal flaws in Cannon’s decisions, some of which are quite obvious and blatant.

For example, one of the central issues in this case is whether Trump could require the FBI to return more than 100 documents seized from his residence, all of which have been marked as classified, as they may be his property. But, as the 11th Circuit notes, the executive order that sets out the rules for classified documents states that such documents “owned, manufactured by or for, or [are] under the control of the United States Government.”

By definition, classified documents do not belong to a former administration official like Trump.

The result of the 11th Circuit order is that the FBI may continue its criminal investigation into whether Trump has violated federal criminal laws governing the handling of national defense information, including the Espionage Act. It is possible that Trump will ask the Supreme Court to reverse Cannon’s original decision, but he is unlikely to prevail there. While the Republican-appointed 6-3 majority of the Court often takes extraordinary steps to ensure the conservative policies Trump supported during his administration remain in effect, they have shown far less personal deference to Trump himself.

For example, last January, the Supreme Court allowed the US House committee investigating the January 6 attack on the US Capitol to obtain documents from the Trump White House against Trump’s objections. Only Judge Clarence Thomas publicly stated his dissent.

In other words, it’s quite likely that this embarrassing chapter for Judge Cannon — and for the federal judiciary — will soon end.

How did we get here?

In August, the FBI executed a search warrant in Mar-a-Lago; The warrant searched, among other things, for “physical documents with classification markings” that the FBI believed Trump was holding in his residence.

The Constitution does require the FBI to meet certain restrictions before it can search or seize a private person’s home. Any law enforcement officer wishing to conduct such a search must have a probable reason to justify it and must obtain an order from a neutral magistrate. The FBI met both requirements before searching Trump’s home — where they recovered several boxes of papers, including the more than 100 classified documents.

Nevertheless, Cannon has determined that Trump is entitled to additional protections rarely afforded to criminal suspects, largely because of Trump’s “former position as President of the United States.” She also ordered the DOJ to suspend the criminal investigation of the documents seized at Mar-a-Lago until a court-appointed official known as a “special master” reviews them.

While this order allowed the DOJ to continue a parallel investigation to assess how Trump’s possession of these documents would have harmed national security, the Justice Department warned Cannon that the two investigations “cannot be easily separated.” separated”, not least because they are performed by the same staff.

Cannon was unaffected and last week appointed Raymond Dearie, a senior federal judge, as that special master to review the documents.

Meanwhile, the Justice Department sought limited relief from the 11th Circuit. The DOJ has not yet challenged Cannon’s warrant to appoint the special captain, or ordered him to search the unclassified documents seized by Trump. But it has sought the approval of the appeals court to continue its criminal and national security investigations into the classified material. It also asked for an injunction to prevent the special captain or Trump’s lawyers from seeing the classified documents.

On Wednesday night, an 11th Circuit panel of three judges — including Trump appointees Britt Grant and Andrew Brasher — granted both of the DOJ’s requests.

The 11th circuit view paints Cannon as a hack, an incompetent, or both

The panel’s opinion is 29 pages long and about half of those pages are devoted to reciting the facts of the case and summarizing what has happened so far in this lawsuit. The court doesn’t begin its legal analysis of Cannon’s orders until page 15 of the advisory, but soon identifies a fatal flaw in its reasoning.

While there are extraordinary circumstances where a court may need to intervene after law enforcement officers seize property under a valid warrant, the 11th Circuit explains, those extraordinary circumstances only arise when the government “showed a heartless contemptfor the constitutional rights of a criminal suspect. But Cannon admitted in her decisions that the Justice Department has shown no such disregard for Trump’s rights.

That alone, according to the advisory, is “reason enough to conclude that the court abused its discretion” to rule in Trump’s favor.

After identifying this flaw, the 11th Circuit then spends another 12 pages highlighting more than a dozen other flaws in Cannon’s reasoning. The court notes, among other things, that Trump cannot possibly have a personal interest in preserving secret government documents. It explains that there is “no evidence that any of these records have been released.” And it alleges that Cannon wrongly instructed the Justice Department to show these documents to the special captain or to Trump’s lawyers.

“The Supreme Court has recognized that for reasons too obvious to provoke an extensive discussion, the protection of classified information must be entrusted to the wide discretion of the responsible authority, and this must include a wide discretion to determine who has access to it,’” explains the 11th Circuit, citing the Supreme Court’s decision in Ministry of Navy v. Egan (1988).

Again, it’s conceivable that Trump could ask the Supreme Court to reinstate Cannon’s original order. But he just lost to a conservative panel dominated by judges he appointed. So it’s unlikely that even this Supreme Court will side with him.

And because key parts of Cannon’s injunction have now been blocked by the 11th Circuit, the GOP-appointed Supreme Court majority can’t just sit on the case for months before finally undoing Cannon — a tactic that judges have used in the past. have used dubious orders from lower courts to reinstate Trump-era policies for nearly a year.

In other words, it is likely that the DOJ will be able to continue its criminal investigation into Trump without significant further interference from Judge Cannon — or elsewhere in the judiciary.

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