The 11th Circuit has reversed Judge Aileen Cannon and granted the Department of Justice’s motion for a limited stay of her order as to 100 documents marked classified. The order is here.
The quick summary: Trump and Judge Cannon are wrong about everything that went up on appeal. Everything. This elegant opinion expeditiously, politely, and succinctly dismantles every single justification Judge Cannon offered for denying the requested stay. Every, Last. One.
It’s a beatdown that is somehow more devastating because of its restraint. There is no sarcasm and no rhetorical flourish. Just: “wrong, wrong, wrong, and wrong again, for these simple, straightforward, easy-to-understand reasons.” Judge Cannon should have stopped when she determined that the government had not displayed a callous disregard for Trump’s rights. But the court went on to decide that Judge Cannon had flubbed every single other factor of the relevant four-factor test, and not just that most important one.
In analyzing the second relevant factor, we now come to the “Always Trust Content from Patterico” part of the post. Here is me, on Twitter, a few days ago:
This garbage order does nothing to explain how Donald Trump could have a property interest in documents marked as classified. Notable that Trump’s lawyers thought they could dance around whether Trump declassified anything … and they were right! https://t.co/Hb8NcLGljS
— Patterico (@Patterico) September 16, 2022
And here is the 11th Ciruit today:
The second Richey factor considers “whether the plaintiff has an individual interest in and need for the material whose return he seeks.” 515 F.2d at 1243. The district court concluded that Plaintiff had an interest in some of the seized material because it included “medical documents, correspondence related to taxes, and accounting information.” Doc. No. 64 at 9. But none of those concerns apply [that should be “applies” — grammar! — P] to the roughly one hundred classified documents at issue here. And the district court made no mention in its analysis of this factor as to why or how Plaintiff might have an individual interest in or need for the classified documents.
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.
As for Trump dancing around the declassification issue:
Plaintiff suggests that he may have declassified these documents when he was President. But the record contains no evidence that any of these records were declassified. And before the special master, Plaintiff resisted providing any evidence that he had declassified any of these documents. See Doc. No. 97 at 2–3., Sept. 19, 2022, letter from James M. Trusty, et al., to Special Master Raymond J. Dearie, at 2–3. In any event, at least for these purposes, the declassification argument is a red herring because declassifying an official document would not change its content or render it personal. So even if we assumed that Plaintiff did declassify some or all of the documents, that would not explain why he has a personal interest in them.
The court also found no irreparable harm to Trump and that he had an adequate remedy at law — all directly contrary to Judge Cannon’s most recent and completely bizarre order.
The court also found that the United States would suffer irreparable injury in the absence of a stay, and gently chided Judge Cannon for giving insufficient weight to the government’s affidavit explaining why a national security review was inextricably intertwined with the criminal investigation.
It’s a loss across the board for Trump and Judge Cannon, and ought to serve as a wake-up call for Cannon on the parts of her order that were not appealed. If she has any sense — and I’m not terribly certain about that, based on her orders — she should see this as a fairly stinging rebuke of the way she has handled this case so far.
My faith in the judiciary lives on for one more day.