On Thursday, US District Judge Aileen Cannon refused to stay her own special master order as it pertained to classified documents, even going so far as to order the FBI to make top secret documents available to Trump and his lawyers, and instructing the special master, Judge Raymond Dearie, to examine those documents first.
Trump’s lawyers Evan Corcoran and Christina Bobb both made representations to the government about Trump’s handling and storage of classified documents which turned out to be false, so they may end up as witnesses in a future criminal indictment — a factor which will not incline the government to share classified information with them. And, as independent reporter Marcy Wheeler points out, Trump’s recently retained counsel, Christopher Kise, registered in 2020 under the Foreign Agents Registration Act to represent Venezuela in negotiations with the Treasury, which should preclude him from getting even a temporary security clearance to examine the documents at issue.
But even without these glaring conflicts, the government is very much not in the habit of handing its national security information over, even in litigation, and so the emergency appeal to the Eleventh Circuit was basically inevitable.
“The district court has entered an unprecedented order enjoining the Executive Branch’s use of its own highly classified records in a criminal investigation with direct implications for national security,” said the Friday night motion for partial stay pending appeal.
While prosecutors may eventually appeal the special master order in its entirety, this filing concentrates only on the 100 or so documents bearing classified markings from the 11,000 pages seized on August 8 at the former president’s Florida country club. They waste no time calling out the flabbiness of Judge Cannon’s reasoning, in which she bootstrapped herself into equitable jurisdiction over all the seized documents by asserting Donald Trump’s claims over the personal property and attorney-client privileged papers which were commingled with government records, and then purported to be confused over whether these classified documents might somehow fall into one of the above two categories.
In her denial of stay, she wrote:
The first premise underlying the Motion is that all of the approximately 100 documents isolated by the Government (and “papers physically attached to them”) are classified government records, and that Plaintiff therefore could not possibly have a possessory interest in any of them. The second is that Plaintiff has no plausible claim of privilege as to any of these documents [ECF No. 69 p. 7 (categorically asserting that the “classified records at issue in this Motion . . . do not include personal records or potentially privileged communications”)]. The Court does not find it appropriate to accept the Government’s conclusions on these important and disputed issues without further review by a neutral third party in an expedited and orderly fashion.
But as the government points out, there’s no universe in which Trump could claim a possessory interest or attorney-client privilege in a document bearing classified markings. It is definitionally government property, and no magical declassification incantation followed by declaring PERSONAL PROPERTYYYYYY à la Michael Scott of The Office can make it otherwise. And so the court’s rationalization of its equitable jurisdiction under the factors laid out in Richey v. Smith, 515 F.2d 1239 (5th Cir. 1975) — which Trump’s lawyers failed to even engage in, forcing Judge Cannon to fill in the blanks as if for a hapless pro se petitioner — fails on every prong as pertains to the classified documents. The government displayed no “callous disregard” for Trump’s constitutional rights; Trump has no “individual interest in and need for the material”; he’ll suffer no irreparable injury if he doesn’t get it back, aside from perhaps getting criminally indicted, which is not a cognizable interest; and if his Fourth Amendment rights were violated in some fashion, the remedy is not a Rule 41 motion (also unpled) for return of personal property, because classified documents are very much not that.
Although, as the government notes, if Trump insists on playing this bullshit game, he cannot assert executive privilege over documents which he has just suggested may be personal property.
And furthermore, whatever vanishing claim of executive privilege Trump might make isn’t a possessory interest either, because, as even Trump concedes, those documents belong to the US government and are to remain in the possession of the National Archives.
The records are not subject to any possible claim of personal attorney-client privilege. And neither Plaintiff nor the court has cited any authority suggesting that a former President could successfully invoke executive privilege to prevent the Executive Branch from reviewing its own records. Any possible assertion of executive privilege over these records would be especially untenable and would be overcome by the government’s “demonstrated, specific need” for them, United States v. Nixon, 418 U.S. 683, 713 (1974), because they are central to its ongoing investigation.
Worse still Judge Cannon’s blithe instruction to continue the national security assessment using the classified documents, but not the criminal one “places the FBI and Department of Justice (DOJ) under a Damoclean threat of contempt should the court later disagree with how investigators disaggregated their previously integrated criminal-investigative and national-security activities.”
“The IC’s review and assessment seek to evaluate the harm that would result from disclosure of the seized records,” prosecutors argue. “The court’s injunction restricts the FBI—which has lead responsibility for investigating such matters in the United States—from using the seized records in its criminal-investigative tools to assess which if any records were in fact disclosed, to whom, and in what circumstances.”
(Kinda sounds like they think these records were actually disclosed to some third party, right?)
As of this writing, no panel had been assigned at the Eleventh Circuit, although Trump has been instructed to file a response by noon on Tuesday. And by sheer coincidence, that’s just about the time Judge Dearie has instructed the parties to appear for a preliminary conference on his review.
And it’s only Monday.
Appellate Documents [via Opening Arguments]
Trump v. United States [Docket via Court Listener]
Liz Dye lives in Baltimore where she writes about law and politics.