Mar-a-Lago Raid: Feds Ask Judge To Partially Stay Special Master Order, Will Appeal If Don’t Get Their Way
“the government seeks a stay to the extent the Order (1) enjoins the further review and use for criminal investigative purposes of records bearing classification markings … and (2) requires the government to disclose those classified records to a special master for review.”
Last we checked in on the Mar-a-Lago Raid legal proceeding, Judge Aileen M. Cannon issued a Labor Day order announcing she will appoint a Special Master, and prohibiting the feds from using the seized documents until further notice (except that the feds could continue their national security risk assessment), Judge Appoints Special Master, Temporarily Bars FBI/DOJ Review Or Use Of Records Seized in Mar-a-Lago Raid:
Pursuant to the Court’s equitable jurisdiction and inherent supervisory authority, and mindful of the need to ensure at least the appearance of fairness and integrity under the extraordinary circumstances presented, Plaintiff’s Motion [ECF No. 1] is GRANTED IN PART. The Court hereby authorizes the appointment of a special master to review the seized property for personal items and documents and potentially privileged material subject to claims of attorneyclient and/or executive privilege. Furthermore, in natural conjunction with that appointment, and consistent with the value and sequence of special master procedures, the Court also temporarily enjoins the Government from reviewing and using the seized materials for investigative purposes pending completion of the special master’s review or further Court order. This Order shall not impede the classification review and/or intelligence assessment by the Office of the Director of National Intelligence (“ODNI”) as described in the Government’s Notice of Receipt of Preliminary Order [ECF No. 31 p. 2].
The feds continued to leak like crazy after the order, in a form of lashing out, getting the word out to The Washington Post that some of the documents related to a foreign government’s nuclear program (the leak didn’t say that such documents were classified). For years during Russia Collusion attacks, whenever there was a news cycle that might help Trump in the public eye, the feds leak something to grab back the news cycle; that tactic seems to be renewing itself.
Regardless, the feds were not happy with the result, and filed a Motion for a Partial Stay Pending Appeal with Judge Cannon. Procedurally, they have to ask the District Court for a stay before seeking a stay in the appeals court. That certainly will happen if Judge Cannon turns them down.
Here’s excerpts from Motion to District Court for Partial Stay Pending Appeal:
Specifically, the government seeks a stay to the extent the Order (1) enjoins the further review and use for criminal investigative purposes of records bearing classification markings that were recovered pursuant to a court-authorized search warrant and (2) requires the government to disclose those classified records to a special master for review. The government respectfully requests that the Court rule on this motion promptly. If the Court does not grant a stay by Thursday, September 15, the government intends to seek relief from the Eleventh Circuit….
[The motion] is limited to the Order’s directives with respect to the seized classified records1 because those aspects of the Order will cause the most immediate and serious harms to the government and the public. The classified records—a discrete set of just over 100 documents—have already been segregated from the other seized records and are being maintained separately….
Here are the grounds for the stay, the feds argued:
First, the government is likely to succeed in its appeal of the Order as it applies to classified records…. Plaintiff does not and could not assert that he owns or has any possessory interest in classified records; that he has any right to have those government records returned to him; or that he can advance any plausible claims of attorney-client privilege as to such records that would bar the government from reviewing or using them. And although this Court suggested that Plaintiff might be able to assert executive privilege as to some of the seized records, Supreme Court precedent makes clear that any possible assertion of privilege that Plaintiff might attempt to make over the classified records would be overcome by the government’s “demonstrated, specific need” for that evidence. United States v. Nixon, 418 U.S. 683, 713 (1974) (“United States v. Nixon”). Among other things, the classified records are the very subject of the government’s ongoing investigation.
Second, the government and the public would suffer irreparable harm absent a stay…. The Court thus stated that its Order was not intended to “impede the classification review and/or intelligence assessment by the Office of the Director of National Intelligence (‘ODNI’).” D.E. 64 at 1-2. But the review and assessment on their own are not sufficient to address and fully mitigate any national security risks presented. The Intelligence Community’s review and assessment cannot be readily segregated from the Department of Justice’s (“DOJ”) and Federal Bureau of Investigation’s (“FBI”) activities in connection with the ongoing criminal investigation, and uncertainty regarding the bounds of the Court’s order and its implications for the activities of the FBI has caused the Intelligence Community, in consultation with DOJ, to pause temporarily this critically important work….
Third, the partial stay sought here would impose no cognizable harm on Plaintiff. It would not disturb the special master’s review of any other records, including any personal materials or records potentially subject to attorney-client privilege….
The feds simultaneously filed a Notice of Appeal, and also a Motion to Unseal Notice of Status of Privilege Review Filter Team, in which the feds want to reveal the nature of the privilege review, but not the documents themselves.
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