Will the 11th Circuit Trump Trump?

Saturday afternoon, the Eleventh Circuit put DOJ’s motion to stay federal district Judge Aileen Cannon’s order on a fast track. That order, as you’ll recall, prohibited DOJ from using documents seized from former president Trump’s office and storage area at Mar-a-Lago in its criminal investigation until a special master she appointed can review them. DOJ asked her to let them continue to work with classified documents that were recovered, while the review of other materials reclaimed in the search proceeds. She refused. The 11th Circuit ordered Trump’s attorneys to respond to the stay motion DOJ filed late Friday by Tuesday.

If you feel like you’ve been watching a ping pong match in the courts lately, you’re not alone. Today’s scheduling order is only the latest parry in Trump’s efforts to derail investigation into why he had classified material and federal records at Mar-a-Lago, long after his presidency ended.

It's confusing. So, let’s make sure we understand the state of play as we head into the new week.

By now, we all know that DOJ executed a lawful search warrant at Mar-a-Lago after Trump spent months haggling over the return of papers that belonged to the government. Ultimately one of his lawyers signed a document certifying that all of the materials were returned. This was a lie. Numerous records including approximately one hundred classified documents were found when DOJ executed its search warrant. Some folders that should have contained classified material were empty. Nothing is publicly known about the fate of those documents.

Trump’s response, two weeks later and after DOJ had complete its review of seized material, was to file a lawsuit, not with the magistrate who signed off on the search warrant, but with a judge in a different division in the Southern District of Florida, who he had appointed to the bench. Of course, as I pointed out in an earlier post, everyone who is a federal judge gets there because a president from one party or the other appoints them. Our expectation as citizens is that once judges receive life tenure, which insulates them from the opprobrium of those who put them on the bench, they will set aside politics and rule on the cases that come before them based solely on the facts and the law.

I was wrong about Judge Cannon. I cautioned against rushing to judgment, mindful that Trump appointees across the country stood for the rule of law in the wake of the 2020 election. Judge Cannon has not stood for the rule of law and her order has been resoundingly criticized by people from across the political spectrum, including such an unlikely candidate as Trump’s Attorney General, Bill Barr. The order deserves all of the criticism.

For instance, the judge rejected, in the absence of any evidence to the contrary presented by the former president, that documents bearing classification markings and represented by the government to be classified were, in fact, classified. The executive branch of government is the entity with the legal authority to make classification decisions and the judge had compelling evidence in front of her. If the documents were classified, Trump had no right to possess them or have them returned to him and that should have ended the entire matter.

Instead, Judge Cannon said she’d need to have a neutral third-party review the documents. Silly me, I thought that’s what a federal judge was, a neutral third-party.  But she granted Trump’s request to appoint a special master.

DOJ gave Judge Cannon a chance to save face, asking her to stay the order, not entirely, but only as it applied to the tranche of 100 or so classified documents. The case for their continued use by DOJ was strong, but the real nail in the coffin on this argument was hammered in by Trump’s lawyers in their response to DOJ’s pleading. They argued that presidents have the right to declassify materials. But they NEVER argued that Trump had, in fact,  done so.

Lawyers owe the court a duty of candor—lying will get you disciplined or even, in extreme cases, disbarred. Trump’s lawyers stopped short saying in their brief that he had declassified any of the materials found at Mar-a-Lago. They would have argued that if it was true, because without it, the argument falls flat. The only logical conclusion we can draw from the lawyers’ failure to say so is that Trump didn’t declassify any of the documents. He took them when he left office and lied about it when he fell under scrutiny.  

This would have led a reasonable judge to rule in favor of DOJ. They need to show they have a strong chance of winning on the merits of the case to get the stay, which they do if Trump has no right to possess the materials found at Mar-a-Lago. DOJ must also establish that they and the public will suffer irreparable injury if the stay isn’t granted. In that regard, DOJ offered evidence to establish that along with the interruption to the criminal investigation, the intelligence community’s classification and risk assessment review was inextricably intertwined with the criminal work, so that stopping one stopped the other as well. DOJ submitted an affidavit from a high-ranking FBI official to substantiate this.

Judge Cannon rejected it all and refused to grant the stay. This is what set the stage for DOJ to take its request to the 11th Circuit in Atlanta, which is where we are, heading into this week.

 While Judge Cannon’s order might be couched in reasonable sounding language, reading it carefully reveals that it’s deeply flawed. It starts with the Judge’s rejection of what common sense alone tells us, that Trump took materials from the White House that are marked classified, and that in the absence of any evidence to the contrary, those markings conclusively establish that they are, in fact, classified.

Judges are supposed to rule based on the evidence in front of them. All the Judge could muster here was that she wasn’t “prepared to adopt hastily” the government’s evidence until a special master could review it. Sure. No problem. Hamper a criminal investigation and shut down a national security risk assessment, because “evenhanded procedure does not demand unquestioning trust in the determinations of the Department of Justice.” There was no rationale for the Judge to reject the uncontroverted evidence in front of her. If anything, her reasoning is emblematic of the damage Trump has done to our democratic institutions, sowing distrust in them to the point that unassailable facts, like the presence of marked, classified documents, could be summarily rejected because, in the Judge’s opinion, DOJ shouldn’t be trusted.

It's not just a terrible ruling in this case, it’s a bad precedent. What person under investigation wouldn’t want to throw this kind of a monkey wrench into DOJ’s work? Apparently, in Judge Cannon’s view at least, that privilege is reserved for former Presidents whose last name is Trump. She suggests her decision is “inherently impacted by the position formerly held by the plaintiff.” So much for the whole, “no man is above the law” tradition established by the Founding Fathers in the Constitution. Judge Cannon said the quiet part out loud, that a former president deserved special consideration. And Judge Cannon’s view didn’t stop Oath Keepers’ leader Stewart Rhodes, currently awaiting trial on charges connected to the insurrection, from asking for a special master of his own. Fortunately, the trial judge is his case smacked down the meritless request.

 As a general matter, I don’t criticize judges simply because I disagree with their rulings. Cases are often close calls. The Supreme Court decides a number of cases on a 5-4 vote. Lawyers understand that just because they don’t win, a judge’s decision isn’t necessarily wrong. But Judge Cannon’s decision is wrong in an unprincipled way.

She cuts corners to reach conclusions that benefit the former president. For instance, after DOJ pointed out she’d shut down the entire intelligence community review by prohibiting DOJ from using classified materials in its criminal case, the Judge dismissed the evidence they put in front of her, suggesting that if the criminal and national security investigations were really that intertwined, they should just go ahead.

I had to read it twice, and then again. At the outset of her opinion, she says DOJ can’t even be trusted when they say documents are classified, but now, she’s giving them carte blanch to decide the investigations overlap, in which case they can just ignore her order and proceed with both the criminal case and the intelligence assessment?

DOJ didn’t miss it either. Cannon tried to force DOJ into the untenable position of proceeding with an essential national security assessment while risking her wrath on the backend if she decides their decision was wrong. That could carry damaging consequences for any prosecution DOJ might ultimately bring.  Judges shouldn’t play games like this with litigants before them. This is an unworthy ruling in a case that, frankly, should have been referred back to the magistrate judge who signed off on the search warrant at the outset.

That’s where we are. DOJ filed its request for a stay with the 11th Circuit Friday night. This isn’t the “big appeal” of the Judge’s entire ruling, just the effort to restore some sanity to the proceedings via a stay and ensure the classified materials can be used in the criminal and intelligence community investigations, while the litigation proceeds. Meantime, Judge Cannon appointed Senior District Judge Raymond Dearie from the Eastern District of New York to act as special master, and he scheduled his first hearing, a public one, for this Tuesday. So, we’ll see both that and Trump’s newest response to DOJ’s stay request early this week.

Under the 11th Circuit’s operating procedures, it’s unlikely we’ll find out which judges are handling the stay motion before they enter their order. And it would be unusual for the same judges to decide the case itself. Preliminary motions in a case are sent to a motions panel that rules on them. Separate panels, established months in advance, decide the cases themselves, while still other panels hear oral argument and decide the matter in the 11% of cases the court sets for argument. So we’ll be keeping our eyes on things in Atlanta, where the Court’s main offices are.

In its Friday night motion, DOJ told the 11th Circuit

·      It needed to move quickly because materials at Mar-a-Lago “were stored in an unsecure manner over a prolonged period, and the court’s injunction itself prevents the government from even beginning to take necessary steps to determine whether improper disclosures might have occurred or may still occur.”

·      The “government’s need to proceed apace is heightened where, as here, it has reason to believe that obstructive acts may impede its investigation.”

·      “The district court here ordered disclosure of highly sensitive material to a special master and to Plaintiff’s counsel—potentially including witnesses to relevant events—in the midst of an investigation, where no charges have been brought…Because that review serves no possible value, there is no basis for disclosing such sensitive information.”

This case isn’t a close call. At bottom, it’s a case where a former president endangered our national security and a federal judge is inexplicably preventing the Justice Department and the intelligence community from promptly assessing and repairing the damage, and prosecuting anyone who violated the law. It will fall next to a three-judge panel of the 11th Circuit Court of Appeals to decide what happens. Let’s hope they’ll join judges who have stood for the rule of the law in other cases where Trump tried to shred it.

Perhaps the ultimate irony is that Trump himself has no respect for the courts. Just this past week, reporting documented that he discussed, as though it was a thing he could do, getting rid of the 9th Circuit Court of Appeals because he didn’t like its ruling. It would be laughable if it was anyone else.

Now the 11th Circuit will have to decide whether a private citizen who thinks he’s beyond the reach of the law is going to learn otherwise. Let’s hope they stand up for what’s right.

We’re in this together,

Joyce