THE RULE OF LAW SURVIVES - FOR NOW (UPDATED)
A three judge panel of the 11th circuit - of which two of the judges are Trump appointees - has granted the Justice Department motion to stay a key part of Judge Cannon’s recent special master ruling. The panel consisted of two Trump appointees — Judges Britt Grant and Andrew L. Brasher — and Judge Robin S. Rosenbaum, an Obama appointee.
Cannon ruled that they could not continue using the classified documents in their criminal investigation while the special master, Judge Dearie, is doing his work.
This three judge panel has overruled Cannon on that point. It’s an important win for the DOJ, though it is perhaps slightly less consequential since Judge Dearie has signaled he plans to move rapidly to do his review.
In a strongly worded 29-page decision, the United States Court of Appeals for the 11th Circuit blocked part of an order by a federal judge that had temporarily barred the department from using the classified materials in its inquiry into whether Mr. Trump illegally retained national defense documents and obstructed the government’s repeated efforts to recover them.
The Justice Department “argues that the district court likely erred in exercising its jurisdiction to enjoin the United States’ use of the classified records in its criminal investigation and to require the United States to submit the marked classified documents to a special master for review,” a three-judge panel wrote. “We agree.”
Mr. Trump “suggests that he may have declassified these documents when he was president,” the appeals court wrote. “But the record contains no evidence that any of these records were declassified.”
The court went on to say, “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.”
Mr. Trump “has not even attempted to show that he has a need to know the information contained in the classified documents,” the appeals court wrote. “Nor has he established that the current administration has waived that requirement for these documents. And even if he had, that, in and of itself, would not explain why plaintiff has an individual interest in the classified documents.”
There is some sense, for some, that these decisions backed by Trump appointees provides some vindication for the apolitical or at least non-partisan nature of the federal judiciary. By some extremely low standard that may be the case.
But it is important to remember that the arguments Trump’s attorneys are making are so baseless and free of any basis in law or the constitution that it strains even the most hackish judge’s ability to lend a hand. Judge Dearie demonstrated this yesterday, and the reports of the proceedings in his court may have had an influence on this decision by the 11th Circuit judges.
As the three judges say at one point in their decision: “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.”
Absolutely right. Donald Trump, civilian FPOTUS has no “need to know” anything about the 100 classified documents, now that he is no longer president.
With this on top of the proceedings today in New York, and the actions by Judge Dearie yesterday, it appears Trump’s house of cards is at least shaking, if not falling.
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