11th Circuit Delivers an Elegant Beatdown to Judge Cannon
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.
It also addresses the last part of the argument that the search was unwarranted because trump *might* have declassified the documents.
Time123 (dd5a72) — 9/21/2022 @ 7:07 pmIt’s a great opinion, very easy to read, and goes to some length to explain a lot of things it didn’t have to.
Dustin (a87c64) — 9/21/2022 @ 7:19 pmThe three-judge panel included two Trump appointees and one Obama appointee, and I saw no dissenting opinion.
I read the ruling and the shredding really begins on page 17. The fact that the panel turned it around so quickly (and completely) should send a clear message to Trump’s judge.
Paul Montagu (753b42) — 9/21/2022 @ 8:19 pmTrump on Hannity: “if you steal them they’re no longer classified”
No, Trump didn’t actually say that but his comment that he declassified the documents he stole “by thinking about it” is just as ridiculous.
Paul Montagu (753b42) — 9/21/2022 @ 8:26 pmThere are poor thinkers in all walks of life but it is more obvious when it is a judge who has to write opinions.
ATCFP because Patterico is a very good thinker.
DRJ (717b74) — 9/21/2022 @ 8:32 pmThere are lots of district court judges who have problems with the law. Even Supreme Court justices do.
Kevin M (eeb9e9) — 9/21/2022 @ 9:16 pmOne of the salutory side effects of this is that it gives people like me something to point to when arguing with people who insist that all Trump-appointed judges are like Cannon. No, they aren’t, and there’s a difference between Trump-appointed judges and Trumpist fanatic judges — as amply demonstrated by this panel doing the right thing.
aphrael (d9db76) — 9/21/2022 @ 10:25 pmAlways remember, that when Trump says something, it’s either projection or confession. In this case, confession:
As I recall, there was video last May of Trump people loading eight boxes of documents onto his private jet, destined from Palm Beach to Bedminster.
Paul Montagu (753b42) — 9/21/2022 @ 10:46 pmpolitical prosecutions as opposed to public corruption and theft are very difficult. Look at the sussman jury and verdict or even john hinkley where the black jury clearly hated reagan. One of the black jurors told o.j. simpson this verdict was for rodney king. In the south all white jurors wouldn’t convict those who committed crimes against blacks. Until threats of race riots it was almost impossible for jurys to convict the police. NY. Washington D.C. trump guilty. Florida trump not guilty.
asset (f0a947) — 9/21/2022 @ 11:24 pmSpecial Master Dearie is turning the screws on Trump and his legal counsel, with this…
I take this to mean that Dearie is forcing Trump’s legal counsel–as officers of the court–to declare whether or not the FBI “planted” documents.
Paul Montagu (753b42) — 9/22/2022 @ 12:32 pmHi Paul
Sorry for the formatting in advance but you more or less said the following:
{Trump’s} comment that he declassified the documents he stole “by thinking about it” is… ridiculous.”
As ridiculous as it sounds or is, the statement by Trump is not factually incorrect because although there are Executive branch processes that the President has traditionally gone through, these are not binding on the Executive. The Executive could say: I thought I told my COS those documents were declassified without redactions as of now but regardless to that as far as I am concerned, the documents were declassified the minute I decided they were.
This was hashed out over Trump back in 2017. I believe that in 2017 Trump shared some ummmm, “spontaneously declassified” information with some Russians
https://www.politifact.com/factchecks/2017/may/16/james-risch/does-president-have-ability-declassify-anything-an/.
I’m of the opinion that Trump is dedicated to claiming that the Executive can disregard Executive branch processes at any time, Trump decided the documents were declassified and then packed them up and took them home which proves the he had decided they were declassified.
There is not much that can be done about it except making noise. He may not get the documents back, but it isn’t an impossibility.
Trump may shed a few more supporters over this and the group that is tired of his drama will grow, but the core base of Trump die hards will dig in deeper will still need to see a smooch on Trumps ring before thay’ll vote for lets say, DeSantis.
steveg (b9979b) — 9/22/2022 @ 1:42 pmThe GOP Presidential candidate needs the die hard vote, can’t win without it, so they will suck up to Trump.
Trump said on Hannity yesterday that he (while president) could declassify something just by thinking it – without leaving any note or making any audible sounds.
I think he’d do better by arguing that if a president treats something like it was declassified, it is and remains declassified.
And since he couldn’t order classified documents to Mar-a-Lago to be secured in anon-classified way, sending them to Mar-a-Lago amounted to its declassification.
At least he’d be arguing the law, not facts.
Anyway the Appeals court agreed with DoJ that it was irrelevant – any documents that had ever been marked classified was presumptively a government record, and not a private, personal one or attorney work product.
Sammy Finkelman (1d215a) — 9/22/2022 @ 2:05 pmMore than fair comment, steve.
Paul Montagu (753b42) — 9/22/2022 @ 2:38 pmOne, Trump’s alleged blanket declassification of the boxes still doesn’t hold water for the documents protected by statute, i.e., nuclear secrets, spy intel, etc. Navy v. Egan recognizes the president’s authority to classify “unless Congress specifically has provided otherwise”, so the president’s authority isn’t absolute.
Two, by the same Trumpian logic, why couldn’t Biden say that he retroactively reclassified all the marked documents that Trump took, by brain fart. It’s no less ridiculous than Trump’s claims on Hannity. Personally, I just don’t believe any of it should go there, for Trump or Biden.
Three, I think it’s relevant that Trump never claimed in his contacts with NARA and DOJ that he declassified anything, mentally or otherwise. His lawyers never asserted such a thing either, publicly or in court or in contact with NARA and DOJ.
Four, I agree that Trump verbally declassified top secret intel when he spilled the beans to a couple of Russians after he sacked Comey, but it wasn’t illegal because he was the POTUS.
Five, most or all the contents that Trump took are presidential records, so anytime after 1/20/2021, they belong to the USA, not Trump. He was obligated under the Presidential Records Act to separate personal records, those that are “purely private or nonpublic character”, and I doubt he actually did that. I don’t have an issue if a special master separates personal from presidential or governmental, given that Trump commingled all kinds of documents.
Whether Trump “declassified” documents by mind control or whatever is really irrelevant. He is being investigated for violating 18 USC 793, which makes possession of “national defense information,” whether it is classified or not, a crime.
Rip Murdock (d2a2a8) — 9/22/2022 @ 3:03 pmThey never prosecuted Alexander Butterfield when he confessed to Bob Woodward of having kept government records including classified information from 1973 to 2014 nor did anybody say they should have.
Instead the National Archives just arranged to get the documents.
https://www.tampabay.com/news/politics/national/new-book-reveals-secret-archive-with-fresh-insight-into-nixon-presidency/2249278
Emphasis mine.
And Alexander Butterfield wasn’t even a president!
Sammy Finkelman (1d215a) — 9/22/2022 @ 3:21 pmSammy, I suspect that Mr. Butterfield turned over the documents forthwith after he was asked for their return. I doubt that he refused to send them back after repeated requests and grand jury subpoena and face-to-face meeting.
Paul Montagu (753b42) — 9/22/2022 @ 3:30 pmBTW Rip, my lack of replies to your comments here connote agreement.
Paul Montagu (753b42) — 9/22/2022 @ 5:09 pmThanks. Silence is better than some of the comments I see.
Rip Murdock (d2a2a8) — 9/22/2022 @ 5:12 pmYes, yes, it is a shredding. It is hard to explain how devastating a finding of “abuse of discretion” is for a judge. It’s like being accused of going the wrong way on the freeway. And it’s boom, right off the bat, following the history of the case.
nk (928abd) — 9/22/2022 @ 6:39 pmI still think this goes no where. Trump can lose the documents, keep the documents, or “agree” the documents go to the archives and as long as he doesn’t get criminally charged and convicted he can claim he won.
steveg (19e2bb) — 9/22/2022 @ 9:47 pmI think they will take the tie and probably spin it as “we are happy to have the classified documents back in our hands to protect lives after this egregious breach of protocol and trust by the executive branch” then move on.
I can see that, but I don’t believe this is over. There are four dozen classified folders that don’t have classified documents in them, Trump has more than one country club, and he and his family have recently received a sh-t ton of Saudi money. I’d like to be proven wrong.
Paul Montagu (753b42) — 9/22/2022 @ 10:34 pmPaul – my operating assumption has been that he’s selling, ever since I heard there were classified docs found at MAL. If he has, I hope they have the evidence and can nail him to the wall.
aphrael (d9db76) — 9/22/2022 @ 11:54 pm