Chalk Another One Up For The Rule Of Law

Tonight, a three-judge panel of the 11th Circuit ruled in favor of DOJ in its quest to resume use of classified materials recovered from Mar-a-Lago. Judge Robin Rosenbaum, a 2014 Obama appointee from Florida, was joined on the panel by Trump appointees Britt Grant from Georgia and Andrew Brasher from Alabama. This was a per curiam opinion, which means the panel judges voted unanimously for this outcome, but didn’t identify who authored the opinion. This is a fairly routine practice, that I read absolutely nothing into. The 11th Circuit also excused the government from any obligation to submit classified materials to the special master for review.

So much for the theory that judges are inevitably beholden to the president who appoints them.

I’m going to get a little bit nerdy tonight and parse the opinion for you in some detail. I think it’s important for us to understand the 11th Circuit’s reasoning. And, this isn’t over yet. We’ll be living with this issues for awhile, maybe even in the context of a criminal prosecution. But let’s not get ahead of ourselves.

First, the judges were careful to stress the limited nature of their ruling: “This matter comes to us on a motion for a partial stay pending appeal. We cannot (and do not) decide the merits of this case. We decide only the traditional equitable considerations, including whether the United States has shown a substantial likelihood of prevailing on the merits, the harm each party might suffer from a stay, and where the public interest lies.”

Yes, the Court issued a caution about the limited nature of the decision. A party that loses a motion ahead of the formal appeal (because the court found it was likely to lose that appeal) might have a premonition that it’s time to cut their losses, maybe even dismiss the lawsuit. But I don’t think anyone expects Trump to do that.

After a recitation of the facts and the lower court’s findings, the court launched into its analysis of why the United States was entitled to a stay of Judge Cannon’s order enjoining it, at Trump’s request, from using classified materials seized from Mar-a-Lago while executing a court-ordered search warrant. It took the Court nine pages to lay out the procedural history of the case, which I’ve just done for you in one sentence. Yes, I know that’s a tough one to read. The procedural posture of the case (as lawyer’s like to say) is unusual. But there you have it, as succinctly as possible.

There is a well-established four factor test—I’ve discussed it here earlier in these proceedings—that the 11th Circuit used to evaluate DOJ’s motion. Here is how it assessed the four factors.

1. The United States established a substantial likelihood it would win when the Court considers this issue on the merits

This one is a resounding loss for Judge Cannon, who, as the panel noted, had “broad discretion” to make the decision to consider this unusual case. They conclude she abused her discretion in doing that, at least as regards the classified materials.

They Court notes that her concession that DOJ didn’t disregard Trump’s Constitutional rights when it seized items from Mar-a-Lago is enough on its own to support their ruling. But they go on to flatly reject her conclusion that Trump might have an interest in some of the classified documents.

The Court wrote with such common sense that I am almost speechless. “For our part, we cannot discern why Plaintiff would have an individual interest in or need for any of the one-hundred documents with classification markings.” “A person may have access to classified information only if…he ‘has a need-to-know the information.’…This requirement pertains equally to former presidents.” It’s 180-degrees from Judge Cannon’s pandering to the former president.

On the declassification issue, the Court notes that the record “contains no evidence that any of these records were declassified.” That, of course, is the plain and simple truth that Judge Cannon failed to acknowledge. The Court concluded that Trump’s “personal interest (or lack thereof) in the documents weighed against Judge Cannon’s decision. It’s classy, simple language. But it’s brutal.

If you haven’t already, you may be starting to think that whoever wrote this order took extreme pleasure in it. I think that must have been the case.

The Court also dispenses with Trump’s suggestion that the threat of prosecution is unfair to him and DOJ should be stopped: “It is a familiar rule that courts of equity do not ordinarily restrain criminal prosecutions.” The 11th Circuit leaves it at that and doesn’t try, unlike Judge Cannon, to craft a special rule to benefit former presidents. It concludes by rejecting any suggestion Trump is entitled to get the classified documents back, pointing out that in any event, his lawyers failed to make the type of notion necessary to have property seized during a search returned (a Rule 41(g) motion).

2. The United States would suffer irreparable injury if the 11th Circuit didn’t grant the stay and permit it to access the classified materials

The opinion goes through an elaboration explanation of how classification works, making it clear that unlike Judge Cannon, the panel takes the subject of protecting classified secrets seriously.

The Court makes the same argument we discussed here earlier this week—that saying the government can use the documents for its intelligence review but not in the criminal investigation doesn’t make any sense. The Court concludes, “this distinction is untenable,” pointing out that the only evidence in the case is the affidavit DOJ submitted from Alan Kohler, Jr., the head of the FBI’s Counterintelligence Division which explains the two are intertwined to the point that one cannot proceed without the other.

The Court gets this right. Admittedly, it’s not a hard call, but it’s refreshing after seeing Judge Cannon get it so wrong: “In sum, given the long-recognized ‘compelling interest in protecting…the secrecy of information important to our national security'…we conclude that the United States would suffer irreparable harm from the district court’s restrictions on its access to this narrow—and potentially critical—set of materials, as well as the court’s requirement that the United States submit the classified records to the special master for review.”

I also took note of this language in the preceding paragraph: “courts should order review of such materials [classified documents] in only the most extraordinary circumstances. The record does not allow for the conclusion that this is such a circumstance.”

3. The rest of it

The Court has little trouble concluding Trump won’t suffer substantial injury if the stay goes into effect because:

• “as we have explained, Plaintiff does not have a possessory interest in the documents at issue.” No right to possess classified materials means there’s no possible harm to Trump if the government can use them.

• “we find unpersuasive Plaintiff’s insistence that he would be harmed by a criminal investigation. ‘Bearing the discomfiture and cost of a prosecution for crime even by an innocent person is one of the painful obligations of citizenship.’” In other words, 11th Circuit to Trump: you’re not above the law.

• Trump’s concerns that privileged materials would be disclosed to the government were unwarranted because of “the nature of the classified materials at issue.”

And finally, the public interest favors a stay. “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 Court reaches the incredibly obvious conclusion that it’s critical to assess any damage Trump has done.

But the fact that it’s an obvious conclusion doesn’t make me any less thankful that the Court has taken steps tonight to reassure the country of its impartiality. It’s tough to feel confidence, at least in the Supreme Court, following a rash of result-oriented opinions like Dobbs during the first full term of the new conservative super-majority. This ruling is clear and correct and we need more of that from our courts.

Unfortunately, this decision doesn’t mean the matter is completely over. Usually, a party that loses a 3-judge panel decision can ask the full court, all of the active judges, to sit “en banc” to reconsider the ruling. But the 11th Circuit rules explicitly foreclose that option on a motion for a stay. That means that if Trump wants to appeal, he’ll have to ask the Supreme Court for help. I don’t like to crystal ball that court, which has been full of unpleasant surprises, but the issues here are so clear that if I had to guess, it would be a fast decision confirming the government’s win, at least for now. After that, there’s still the full appeal before the 11th Circuit, if any issues are still in play. It’s possible Judge Dearie, with his plans for quick review of the documents, could make everything moot. That will depend in large part on Judge Cannon’s reaction to his decisions.

So, we’ve had a few bright spots this week, along with Tish James’ civil lawsuit against the Trumps in New York and Ginni Thomas’ upcoming testimony to the January 6 Committee. You know what Dr. King said about the moral arc of the universe.

We’re in this together,

Joyce