DOJ filed a motion today that is a real doozie. It’s a class act offering of an off-ramp to a judge who is badly in need of one.
First off, we need to understand what this motion is and what it isn’t. The motion is a request for a partial stay of the Judge’s order last week that prohibited DOJ from using seized items until a special master could review them. The request for a stay is partial in that it only concerns the classified records DOJ recovered at Mar-a-Lago. It describes them as “a discrete set of just over 100 documents.”
The government wants the judge to hold off on enforcing two parts of her order, and only insofar as they apply to the classified documents. This is what is known, in legal terminology, as a “stay”:
· The part that requires the government to forego “further review and use for criminal investigative purposes” of the classified documents, and
· The part that requires the government to disclose the classified records to a special master
This motion is not the government’s appeal of the district court’s order to the Eleventh Circuit Court of Appeal—the appeal that’s been the subject of so much speculation. We now know that DOJ will appeal. They filed a notice of appeal with the district court today, and although it isn’t showing up on the Eleventh Circuit’s docket just yet, that should happen once the clerk of court has a chance to handle the paperwork.
But while we know there will be an appeal, we don’t yet know what issues the government will raise. It was careful to say in its motion, that although it was only asking for relief regarding the classified documents, it “respectfully disagrees with the Court’s injunction as to a much broader set of seized materials.” So, the appeal itself could challenge more of the district court’s decision than the limited arguments in the motion for a stay.
DOJ’s tone is respectful throughout, but the government does not mince words when it comes to arguing that the judge’s order is wrong, as in, missed the boat completely kind of wrong. And in delicate, polite tones it clarifies the precise nature of the damage she, a lone federal judge in Florida, is poised to do to our national security. This is exactly the tone experienced appellate litigators take when they are about to pillory a lower court’s ruling, which is what DOJ does in its motion.
DOJ’s core argument is its explanation of why it’s entitled to a stay. There are well-established factors that a party seeking a stay must convince the court of:
1. The party is likely to win on appeal—in other words, DOJ must convince the court it has a strong likelihood of success in the 11th Circuit on its argument that it should be permitted to continue to use the classified documents and its argument they should not be submitted to a special master,
2. The government and the public will suffer irreparable harm if the stay is not granted,
3. The plaintiff (that’s Trump) won’t suffer harm due to the stay, and
4. “The public interest supports the stay.”
DOJ’s argument lay bare the weakness in Judge Cannon’s order. For instance, DOJ’s explanation of why it’s likely to win on appeal is a litany of reasons the district judge got it wrong in the first place. Trump shouldn’t have the ability to keep DOJ from working with the classified materials it recovered from him because he has no legal right to classified records and certainly no right to have them returned to him. And, he has no attorney-client privilege in classified documents created by the government, because the privilege only covers legal advice given by the lawyer to the client. DOJ also slices up any notion executive privilege could apply here, pointing out that the privilege is a qualified one that can be overcome if the government has a “demonstrated, specific need” for the evidence in a context like a criminal investigation. And of course, it does here, since the classified records are the “very subject of the government’s ongoing investigation.”
When it comes to demonstrating irreparable harm, DOJ identifies three separate problems: damage to the intelligence community review, to the criminal investigation, and with any sharing of classified material with a special master. It dives into the biggest weakness in the judge’s order: her failure to understand how intertwined the intelligence community risk assessment is with the ongoing criminal investigation. The FBI plays a key role in domestic intelligence work—DOJ reminds the judge the FBI is designated by executive order as part of the intelligence community, and they have unique authority inside of the domestic United States where the CIA and other intelligence community (“IC”) members are forbidden from or strictly limited in acting. DOJ explains that the judge’s order has shut down the national security review, because the Director of National Intelligence (DNI) is concerned that the essential role the FBI plays in IC review could result in violation of the court’s order. DOJ’s point: the district judge acknowledged the critical nature of the intelligence community review while simultaneously shutting it down.
DOJ also points out Trump won’t suffer any “legally cognizable” harm (a harm the courts could recognize and address) if the stay it is requesting is granted. DOJ has already reviewed the classified materials and even the court’s order would let it continue to do so for certain national security purposes. A stay would simply permit what’s already in progress to continue. In plain English, DOJ is asking how the guy who took the classified nuclear secrets he wasn’t entitled to have is harmed if law enforcement gets to look at those materials to protect our national security. A similar argument supports the final criteria for a stay, the public interest.
The case for a stay is solid. In fact, it’s surreal that we’re here at all. The judge is giving Trump the opportunity to offer input into who the special master should be, as though the former president didn’t hold onto highly classified documents he had no right to, lie to the government about it, say they’d all been returned and try to obstruction the investigation.
What happens next? DOJ told the judge that if she doesn’t enter a ruling in its favor by next Thursday, September 15, it will take its request for a stay to the 11th Circuit (the law permits a party to do just that, asking the appellate court to enter a stay if the district judge declines to do so). The judge responded quickly, ordering Trump’s lawyers to address the government’s request for a stay by Monday and asking both parties to consider the issue in a response they have due tomorrow on the special master appointment. We should quickly learn more about where this is headed.
There has been a lot of concern this judge would kneecap the government’s investigation; that Trump, as he has in the past, would avoid accountability yet again. The strength of DOJ’s stay motion should sustain some of the slow-growing confidence in DOJ that has developed over the past few months. Merrick Garland’s Justice Department is resolute here. They are right, they are determined, and they show no signs of rolling over in the face of Trump’s usual efforts to make a mockery of justice. Signs of progress. It all depends on the courts now.
We’re in this together,
I'm sure I speak for many when I say "Thank you so much!" The "news" we get elsewhere is so truncated or jumbled that it is impossible to understand. Thank you Joyce for making it clear for us.
I always feel comforted by “We’re in this together.”