THE DOJ FILES NOTICE OF APPEAL OF THE LOOSE CANNON DECISION

Today, the Department of Justice announced that Federal prosecutors will appeal that part of the order made by Judge Loose Cannon to the Eleventh Circuit. The DOJ also asked Judge Cannon in a separate filing to temporarily halt her injunction stopping investigators from using records it seized in the search for its investigation, as far as it applied to classified documents taken by the government.

The government also wants Cannon to stay the part of her order that allowed the Special Master to look at classified records that were seized.

It’s not clear what portion of the order the DOJ is appealing. Judge Cannon’s ruling enjoined prosecutors from using any of the records seized for investigative purposes and also appointed a special master to sort through the records.

In the filings, the prosecutors suggested the government was having difficulty understanding Cannon’s order, saying that the order effectively prevented the intelligence community from undertaking a damage and risk assessment about the consequences of Trump having taken the classified documents, but did not bar the government from taking non-investigative actions with the records, including “briefing Congressional leaders with intelligence oversight responsibilities regarding the classified records that were recovered.”

The notice of appeal states, “The government similarly does not understand the Order to restrict senior DOJ and FBI officials, who have supervisory responsibilities regarding the criminal investigation, from reviewing those records in preparation for such a briefing.”

Prosecutors noted in a detailed inventory released earlier this week that many folders marked with various levels of classification were empty when seized at Mar-a-Lago. The government argued that it would likely prevail on its appeal in part to continue its investigation into where the materials held within ended up. “The FBI would be chiefly responsible for investigating what materials may have once been stored in these folders and whether they may have been lost or compromised—steps that, again, may require the use of grand jury subpoenas, search warrants, and other criminal investigative tools and could lead to evidence that would also be highly relevant to advancing the criminal investigation.”

Through most of the filing, prosecutors ignored the element of Cannon’s order that struck many as the most offensive: the notion that Trump as a former President deserved more deference because he had more to lose.

In the final paragraph, prosecutors made an oblique reference to Cannon’s finding that Trump is special. The government said that Trump had only one possible injury, and that it “relates to the government’s investigation itself.”

Prosecutors added that defending against “potential criminal prosecution” cannot be a harm in the sense that Cannon found it was. “That is why courts have exercised great caution before interfering through civil actions with criminal investigations or pending cases.”

The notice of appeal also dismisses Cannon’s finding that the special master would have something to adjudicate with respect to executive privilege, arguing that the order is almost completely divorced from federal law, which mandates that records from an administration stay in government custody with the National Archives. Cannon broke with nearly every other court decision in the area by finding that Trump had a potential claim to assert executive privilege over the records, thereby blocking them from the DOJ.

The filing noted that not even the Supreme Court was willing to entertain Trump’s privilege arguments in a 2022 case when they ruled against an attempt to use executive privilege to block the January 6 Special Committee from accessing his records. The notice of appeal stated that it would not make sense, “that a former President can successfully assert executive privilege to prevent the Executive Branch itself from reviewing and using its own records.”

The senior DOJ officials who signed the memo, included Assistant Attorney General Matthew Olsen, who leads the National Security Division. Alan Kohler, Jr., the assistant director of the FBI’s Counterintelligence Division, also filed an affidavit supporting the motion.

Prosecutors told Cannon that if she did not grant a stay by September 15 they would immediately “seek relief” from the Eleventh Circuit Court of Appeals.

“A stay would simply allow the government to continue to review and use the same records—which, again, indisputably belong to the government, not Plaintiff—in its ongoing criminal investigation as well.”

It’s clear that the DOJ is going to make its appeal on very narrow grounds that make the appeals court decision relevant to many other government cases in an attempt to make clear to the Trump “judges” on the appeals court that they cannot create a decision that helps Donald Trump that does not harm the rest of federal jurisprudence.

Thanks again to the new Paid Subscribers who have decided to support the work of TAFM. Welcome to our community and I look forward to seeing your comments. I hope others will consider taking this step, as it really does help.

Comments are for paid subscribers.

(Tip o’ the hat to Hale Irwin for the cartoon)