Patterico's Pontifications

9/21/2022

11th Circuit Delivers an Elegant Beatdown to Judge Cannon

Filed under: General — Patterico @ 6:45 pm



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:

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.

24 Responses to “11th Circuit Delivers an Elegant Beatdown to Judge Cannon”

  1. It also addresses the last part of the argument that the search was unwarranted because trump *might* have declassified the documents.

    Time123 (dd5a72)

  2. It’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)

  3. The 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)

  4. Trump 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)

  5. There 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)

  6. There are lots of district court judges who have problems with the law. Even Supreme Court justices do.

    Kevin M (eeb9e9)

  7. One 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)

  8. Always remember, that when Trump says something, it’s either projection or confession. In this case, confession:

    “You’re sending it [the docs marked classified] to Mar-a-Lago or wherever it is you’re sending it.” Seems to imply FPOTUS sent documents marked classified to places other than MAL.

    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. political 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)

  10. Special Master Dearie is turning the screws on Trump and his legal counsel, with this

    No later than September 30, 2022, Plaintiff shall submit a declaration or affidavit that includes each of the following factual matters:

    a. A list of any specific items set forth in the Detailed Property Inventory that Plaintiff asserts were not seized from the Premises on August 8, 2022.

    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)

  11. Hi 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.
    The GOP Presidential candidate needs the die hard vote, can’t win without it, so they will suck up to Trump.

    steveg (b9979b)

  12. 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)

  13. More than fair comment, steve.
    One, 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.

    Paul Montagu (753b42)

  14. 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)

  15. They 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

    President Richard Nixon believed that years of aerial bombing in Southeast Asia to pressure North Vietnam achieved “zilch” even as he publicly declared it was effective and ordered more bombing while running for reelection in 1972, according to a handwritten note from Nixon disclosed in a new book by Bob Woodward.

    Nixon’s note to Henry Kissinger, then his national security adviser, on Jan. 3, 1972, was written sideways across a top-secret memo updating the president on war developments. Nixon wrote: “K. We have had 10 years of total control of the air in Laos and V.Nam. The result = Zilch. There is something wrong with the strategy or the Air Force.”

    Emphasis mine.

    Nixon’s note, which has not previously been disclosed, was found in a trove of thousands of documents taken from the White House by Alexander P. Butterfield, deputy to H.R. Haldeman, Nixon’s chief of staff, and not made public until now. Butterfield’s odyssey through Nixon’s first term is the subject of Woodward’s book, The Last of the President’s Men, to be published Tuesday by Simon & Schuster.

    And Alexander Butterfield wasn’t even a president!

    Butterfield anticipated writing a memoir, so when he left the White House in 1973, “I just took my boxes of stuff and left,” he told Woodward, packing them into his and his wife’s car. Woodward writes that the boxes contained everything from routine chronologies and memos to some top-secret exchanges with Kissinger and a few highly classified CIA bulletins.

    Butterfield acknowledged to Woodward that it was improper and wrong to remove them, and pledged to ensure that they will be deposited with a proper archive.

    Woodward, who wrote that he thought the Nixon story was over for him after his book on Mark Felt, the FBI associate director and secret source known as Deep Throat, said he was “shocked” at the existence of Butterfield’s secret files. “So the story, like most of history, does not end,” he writes.

    Sammy Finkelman (1d215a)

  16. Sammy, 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)

  17. Mar-a-Lago special master orders Trump team to back up any claims of FBI ‘planting’ evidence
    ……..
    Judge Raymond Dearie, the court-appointed special master, said in a filing Thursday that Trump’s team needs to submit a sworn declaration saying if they believe the Justice Department included any items on their “inventory” of materials taken from Mar-a-Lago that were not actually seized during the search.

    The declaration must include “a list of any specific items set forth in the Detailed Property Inventory that Plaintiff asserts were not seized from the Premises on August 8, 2022,” Dearie wrote in the order.

    This has come up as an issue in the case because Trump himself, some of his attorneys, and several of his outside Republican allies have publicly claimed that the FBI planted evidence at Mar-a-Lago during the August 8 search.
    ………
    Dearie opened the door in a Thursday order to holding a hearing where “witnesses with knowledge of the relevant facts” could be called to testify about the Mar-a-Lago search and the materials that were seized.

    If this happens, it could become a put-up-or-shut-up moment for the Trump side, which has made a wide array of statements about alleged government improprieties out of court, but has been much more restrained in court, where it would be a crime to knowingly lie.
    ………

    Rip Murdock (d2a2a8)

  18. BTW Rip, my lack of replies to your comments here connote agreement.

    Paul Montagu (753b42)

  19. BTW Rip, my lack of replies to your comments here connote agreement.

    Paul Montagu (753b42) — 9/22/2022 @ 5:09 pm

    Thanks. Silence is better than some of the comments I see.

    Rip Murdock (d2a2a8)

  20. Presidential Power to Declassify Information, Explained
    ……..
    Normally, presidents who want something declassified direct subordinates overseeing the department or agency with primary responsibility for the information to review the matter with an eye to making more of it public. But on rare occasions, presidents declassify something directly.
    ……..
    Can a president secretly declassify information without leaving a written record or telling anyone?

    That question, according to specialists in the law of government secrecy, is borderline incoherent.

    If there is no directive memorializing a decision to declassify information and conveying that decision to the rest of the government, the action would essentially have no consequence. Departments and agencies would continue to consider that information classified and so would continue to treat it as a closely held secret, restricting access to records containing it.
    ……..
    Even if evidence emerged that Mr. Trump technically deemed the documents declassified before leaving office, that would also not help him with other legal problems arising from his hoarding of government documents despite repeated efforts to retrieve them.

    The other two criminal laws cited in the search warrant affidavit — concealing or destroying government records, and concealing documents as part of an effort to obstruct an investigation or other official effort — do not have to involve national security secrets.
    ………

    Rip Murdock (d2a2a8)

  21. 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 pm

    Yes, 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)

  22. I 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.
    I 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.

    steveg (19e2bb)

  23. I 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)

  24. Paul – 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)

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