DOJ Responds To Trump

So, what happened today in the ongoing legal battles between Trump and the Justice Department? DOJ filed its response to Trump’s application to SCOTUS, in which Trump sought (partial) vacatur of a (partial) stay of the district court’s order granting an injunction.

If you’re feeling a little vermischt (that’s Yiddish for deeply confused) over this, you’re not alone. Procedurally, the appeal has become ridiculously complex for what it is—or perhaps more appropriately, for what it isn’t. What Trump’s request to the Supreme Court is not, is a request to stop DOJ from using the classified documents seized from Mar-a-Lago in its criminal investigation. He didn’t request that, most likely because he would have been on such shaky legal footing had he done so, that his lawyers might have even found themselves facing sanctions. So, the criminal investigation is continuing and DOJ can use the 100 or so classified documents.

But was does vacatur of a stay of an injunction mean? Here we go:

·      Vacatur: an order setting aside a judgment from a lower court. In this case, Trump is seeking (partial) vacatur of the 11th Circuit order. It’s partial because he’s only asking the Supreme Court to set aside the part of the 11th Circuit’s order that excludes classified documents from the special master’s review process. The part of the order that permits DOJ to use those materials in its criminal and national security investigations remains in place, as discussed above.

·      Stay: a ruling by a court to stop or suspend a proceeding either temporarily or indefinitely. Here, the Justice Department successfully asked the 11th Circuit to stay the part of Judge Cannon’s order that applied to classified documents. To get a stay, the moving party (DOJ here) has to convince the court (1) that after the stay is granted and the parties get onto litigating the substantive issues, it’s likely to win; (2) that it will suffer damage that can’t be repaired, “irreparable injury,” if it doesn’t get the stay; (3) that the other side in the case won’t suffer substantial harm if the stay is granted; and (4) that the public interest will be served by granting the stay. DOJ won on those factors in the 11th Circuit.

·      Injunction: a court order that requires a person to do something or to stop doing something. Here, Trump filed a civil lawsuit after DOJ’s (judicially authorized, based on probable cause) search of Mar-a-Lago, and asked Judge Cannon to enter an injunction that kept DOJ from using anything seized during the search in its criminal investigation and by extension, in the national security review. This, to say the least, was unusual. Typically, the way to challenge a search is by filing a motion to keep the government from using the evidence a defendant maintains was wrongfully seized in a criminal case after an indictment is returned. Judge Cannon seems to have missed that day in law school and not learned differently during her seven years in the U.S. Attorney’s Office in Miami.

So, that’s the procedure, the way this case got to the Supreme Court. And understanding the procedural posture of the case helps us understand the substantive arguments the parties are making and why Trump’s are likely to fail here.

Trump is trying to force the classified documents back into the special master review process. It’s not entirely clear why, but it may be that his lawyers hope the government will hesitate to expose highly classified material outside of the executive branch and DOJ may become disinclined to pursue a criminal case if they’re ordered to disclose them to the special master. If this is what’s motivating Trump’s lawyers, they’re likely in for a disappointment. Even if some of the classified material has to be protected at all costs, DOJ should be able to reach an accommodation with the intelligence community that lets it proceed with a criminal case on the basis some of the classified material. After all, they have more than 100 documents to choose from, given Trump’s carelessness with national security.

The response brief DOJ filed today is thoughtful & compelling. As the Solicitor General points out, DOJ sought modest and thoroughly warranted relief from the 11th Circuit to avoid unprecedented interference by a district court judge in a criminal investigation. And, if you steal the office petty cash box and the police take it away from you as evidence, you’re not entitled to have it returned to you. It’s not yours. Same when a president keeps classified documents and other government materials when he leaves office. They’re not his in the first place. And the Solicitor General fatally damages Trump’s argument that he’s entitled to any relief from the Supreme Court by pointing out that it’s impossible for him to suffer irreparable injury by being denied access to something that isn’t his.

Beyond that, the notion that highly classified materials whose unauthorized release could have serious implications for national security should be subjected to the scrutiny of a special master for no reason other than that Trump asked for it should be a non-starter for the Supreme Court. DOJ crushed Trump’s arguments on the technical legal issues, like whether the 11th Circuit had jurisdiction to enter the order in DOJ’s favor that Trump is trying to do an end run around and whether DOJ was entitled to a stay. He’s not entitled to any relief from the Supreme Court.

Trump filed a civil lawsuit to try and kneecap a lawful criminal prosecution. He very nearly did, at least for a while, with the help of Judge Cannon. Cannon took the unprecedented step of entering an injunction that interfered with a criminal investigation while it was in progress. The 11th Circuit put us back on more solid legal ground by staying parts of her order and permitting the criminal investigation to proceed, like it would have against any other subject of an investigation. There is no reason for the Supreme Court to reward Trump for obstructing and delaying that investigation. Hopefully they will see it that way and let DOJ proceed with its investigation while the 11th Circuit handles the appeal it agreed to expedite last week.

I hope that helps with some of the confusion.

We’re in this together,

Joyce