![[Documents taken in August Mar-A-Lago search]](https://outsidethebeltway.com/wp-content/uploads/2022/08/FbdY32sX0AEIBa0.jpg)
![[Documents taken in August Mar-A-Lago search]](https://i0.wp.com/outsidethebeltway.com/wp-content/uploads/2022/08/FbdY32sX0AEIBa0.jpg?resize=1024%2C690&ssl=1)
Last night, surprising absolutely no one, the Department of Justice filed an appeal with the Eleventh Circuit Court of Appeal about Judge Aileen Cannon’s ruling blocking criminal investigators from accessing the documents marked classified that were retrieved from Mar-A-Lago. The contents of the appeal largely mirror the structure of the request for reconsideration they made to Judge Cannon. As covered here, on Thursday, Judge Cannon denied that request as part of her order naming a Special Master.
First thing to get out of the way: this is not a broad appeal of Cannon’s decision to appoint a Special Master. The DOJ has constructed a very narrow and tight “stay” argument against the section of that ruling that forbids them from using the documents marked classified as part of ongoing investigations during the Special Master review period. They are also requesting a stay in having to share copies of those documents with the Trump legal team. Time will tell if, as many expect, the DoJ decides to move forward with a broader appeal or not.
What happens next is that this appeal will go before a three-judge panel from the Eleventh Circuit. There is no telling when this will be heard by the Eleventh Circuit. As far as the potential make-up of the panel, Politico reporters note:
Republican appointees, and in particular Trump nominees, dominate at the appeals court that will now consider issues presented by the unprecedented criminal investigation and FBI raid of the former president’s home. Trump’s judicial picks make up a majority of the 11th Circuit’s active judges and Republican appointees occupy eight of the 11 active judgeships that are currently filled.
https://www.politico.com/news/2022/09/16/justice-dept-asks-appeals-court-to-restore-access-to-trump-raid-documents-00057329
Again, I want to urge people to avoid any assumption that “the fix is in.” Circuit Judges often rule in unexpected ways and the DoJ’s argument is very well crafted.
That said, regardless of the outcome, this will not stop with the three-judge panel. Since the 11th Circuit doesn’t allow for en banc (full circuit) hearings for stay motions, this will be heading to the Supreme Court and emergency relief. And what happens there, in this case of the *current* Executive Branch vs. the *previous* Executive Branch could be the start of a literal Constitutional crisis. However, it should also be kept in mind that the SCUS can choose to not hear the case. I think there is a pretty good chance that if the 11th Circuit finds for the DOJ, then the Supreme Court may just let that stand. I think that is far less likely if the Circuit upholds the lower court’s decsision.
Again, my expectation is that the higher this gets, the more deference will go to the current Executive Branch, but y’all know my track record when it comes to prognostication.
As far as the argument the DoJ is making, as I mentioned above it’s super tight (as one would expect) and deeply rooted in precedent. As I’ve called out a few times before, one key thing it once again stresses is that the Trump team has yet to make any affirmative claim in a court of declassification or executive privilege:
Despite multiple opportunities, Plaintiff has never represented that he in fact took either of those steps [declassification or executive privilage]—much less supported such a representation with competent evidence…. The court erred in granting extraordinary relief based on unsubstantiated possibilities….
Aside: in media appearances, former President Trump continues to claim that he did in fact declassify “everything.” There is a far greater than 0% chance that those public proclamations will come back to haunt him and his legal team in court.
As one would expect, the DoJ filing was highly critical of Judge Cannon’s reasoning and ruling as well. But, perhaps the most interesting section was the following one:
Yet 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…
As noted previously, it appears that at least two of the former President’s lawyers have legal exposure in this case (most likely around making false statements). At a minimum, they were witnesses to potentially criminal behavior. In most cases, they would not be part of an ongoing legal team because of that exposure. But this isn’t most cases. So the idea that you will provide witnesses and potential suspects with documents that they might ultimately be asked to testify about is… to say the least… highly irregular.
And, as with all things related to this case, nothing at all is regular. We continue to find ourselves far off the map. So who knows what dragon will pop up next. But whatever does, I’ll (probably) cover it here (eventually).
[Update 9/18 @ 11am ET] – Last night the 11th Circuit informed the Trump legal team that they must submit their brief by noon on Tuesday. This suggests this will be pretty expedited. Depending on whether or not there is a hearing we may know the outcome of the appeal by Friday. I also expect a number of outside lawyers and legal groups will be filing amicus briefs as well.
