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Mar-a-Lago Raid: 11th Circuit Grants Partial Stay of District Court Special Master Order As To Documents Marked Classified

Mar-a-Lago Raid: 11th Circuit Grants Partial Stay of District Court Special Master Order As To Documents Marked Classified

Feds “entitled to a stay of the district court’s order, to the extent that it (1) requires the government to submit for the special master’s review the documents with classification markings and (2) enjoins the United States from using that subset of documents in a criminal investigation.”

https://twitter.com/DailyCaller/status/1351887937869402112

The 11th Circuit Court of Appeals has granted the feds motion for a partial stay of that portion of the District Court’s Order appointing a Special Master as required the feds to submit approximatly 100 documents with classified markings for review by the Special Master, and prohitibit the feds from using those documents as part of a criminal investigation until review by the Special Master.

From the Opinion issued tonight (emphasis added):

Following the execution of a search warrant at the residence of Plaintiff-Appellee, former President Donald J. Trump, Plaintiff moved for the appointment of a special master to review the documents that Defendant-Appellant United States of America seized. The district court granted that motion in substantial part. Now, the United States moves for a partial stay of the district court’s order as it relates to the roughly one-hundred documents bearing classification markings. We decide only the narrow question presented: whether the United States has established that it is entitled to a stay of the district court’s order, to the extent that it (1) requires the government to submit for the special master’s review the documents with classification markings and (2) enjoins the United States from using that subset of documents in a criminal investigation. We conclude that it has.

We stress the limited nature of our review: this matter comes to us on a motion for a partial stay pending appeal. We cannot (and do not) decide the merits of this case. We decide only the traditional equitable considerations, including whether the United States has shown a substantial likelihood of prevailing on the merits, the harm each party might suffer from a stay, and where the public interest lies.

For the reasons we explain below, we grant the United States’s motion for a partial stay pending appeal.

Key parts of the Opinion:

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 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….

Plaintiff has not even attempted to show that he has a need to know the information contained in the classified documents. 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. 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…. 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.

This factor—the Plaintiff’s personal interest (or lack thereof) in the documents—also weighs against exercising jurisdiction ….

Through Kohler’s declaration, the United States has sufficiently explained how and why its national-security review is inextricably intertwined with its criminal investigation. When matters of national security are involved, we “must accord substantial weight to an agency’s affidavit.”

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Comments

If you aren’t giving your full support to taking the senate this November remember that this could easily be what every court is deciding if Democrats gain 51,

    Talk to that rat, McConnell.

      Oh, you mean the guy who made sure three Trump SCOTUS nominees were confirmed? That rat McConnell?

      He is a rat, but he can’t really be faulted for the courts.

      Same rat who stopped every Obama judge from 2014-2020?

      I don’t care how much someone is hated by Trump I care about the comparison of would I prefer them to Schumer.

      By the way the issues Trump hates McConnell over (McConnell refusing to abolish the filibuster, and McConnell refusing to agree to an attempt to prevent Biden becoming president after he won the election because it had no legal path to success and would backfire) guess what? McConnell has been fully vindicated on both counts!!! We have moved much closer a police state than thought possible thanks to Trump’s D.C. Protest and we are fully reliant on the filibuster that we have thanks to McConnell.

      Less rhetoric more realism.

    We wouldn’t even be in this situation if Trump hadn’t screwed up in Georgia. An analysis from The Atlanta Journal-Constitution found that over half of the 752,000 voters who voted in the presidential election but sat out the runoffs were white and disproportionately hailed from strongly Republican rural areas that backed Trump in 2020, particularly in northwest and southeast Georgia.

      taurus the judge in reply to JR. | September 22, 2022 at 8:03 am

      Good morning Troll

      CommoChief in reply to JR. | September 22, 2022 at 10:42 am

      Dude that’s 200K voters who participated in Nov and didn’t show up in Jan for the runoff.

      Lots of reasons why not. Lin Wood insane ramblings. Others who essentially use the trope of ‘your vote won’t count’; several adherents post here, holiday period obligations. People just not motivated.

      Infighting between McConnell and DJT over a vote on another 2K of covid relief was a reason and IMO the most important reason (polls indicate that) but it wasn’t the only reason folks didn’t show up. Hell, we only needed 50K to win one race and 80K to win the other.

      That leaves 120K to stay home and ‘send a message’. Unfortunately that message allowed Schumer control of the Senate and the consequences that flow from it. One of which was passing additional Covid relief…..

        retiredcantbefired in reply to CommoChief. | September 22, 2022 at 4:05 pm

        Turnout was actually high for a runoff for Senate in GA. Turnout by Democrats may have been, well, artificially high.

        I still don’t understand why anyone thought that fraudulent tactics employed in November wouldn’t be used in January, as long as no one complained that they had been used in November.

      Danny in reply to JR. | September 22, 2022 at 5:45 pm

      You are correct but unfortunately it did happen so we have to do what we can to get out of the situation and the battleground state map isn’t exactly an easy one.

Can this go up to the Supremes

    It would go en banc to the entire 11th Circuit first, I would expect.

    taurus the judge in reply to gonzotx. | September 22, 2022 at 10:36 am

    At the end of the day its going to have to (and I have a feeling this was Team Trump’s plan all along)

    Here’s why ( and the DOJ has gone to great lengths to obfuscate this one fact. ( the lynch pin everything the DOJ is hoping on)

    The “unique” powers vested in POTUS by the Constitution ( to which the SCOTUS has “original jurisdiction” )

    Its “fruit of the vine”

    IF POTUS (Trump) as the named Constitutional office/CIC,CEO exercises his authority in that position (unique and plenary) then not only are the documents “declassified” but any “national security” issue goes with it.

    Also, if the POTUS selects “his” items (Presidential records) then that ends there too.

    If those 2 “end” then any “case” built on that premise ends as well.

    Basically a POTUS “cannot” commit the crime because his actions are within his authority REGARDLESS of what any SUBORDINATE person or even “law” says.

    They are trying to treat Trump like “Snowden” but Snowden was not POTUS and hoping they can “bluff” this all the way through.

      taurus the judge in reply to taurus the judge. | September 22, 2022 at 11:11 am

      Here is a “possible” strategy that Team Trump “may” be using based on information in the media and a logical theory ( subject to change)

      By basically sitting on their hands and drawing this out, Trump is running down the clock.

      There are 3 clocks in play with each having unique things

      Nov 22 ( the mid terms), Nov 24 ( Presidential election) and Jan 23 ( seating the new congress)

      Assuming Trump was prepared and tipped on the raid ( I’m certain he was)- the DOJ has nothing that Trump didn’t already decide they could have so he is just “making noise” in the process right now.

      But, by doing “nothing’ and basically stalling- Trump is now controlling both the tempo and timeline- the DOJ has nothing else to get ( and now will be playing a bit of defense ball too)

      Basically using their own case against them because this also locks them in in terms of charges and any other investigations.

      Trump probably also plans for this to go to SCOTUS ( with previous rulings) too.

      I am certain the DOJ knows all this too.

PuttingOnItsShoes | September 21, 2022 at 10:36 pm

This really might be okay if it weren’t for two things.

The plaintiff were an ordinary citizen instead of the former president.

The justice department had demonstrated fairness and equal application of the law.

Neither of those are true, therefore this is an atrocious ruling enabling continued abuse of a political enemy. Particularly in light of the Letitia James monstrosity that got laid out today.

Lastly, this leaves in place a regime where no court can intercede or question the validity of quote unquote National security, therefore the intelligence apparatus has absolute power which results in absolute corruption.

That’s where we are and we’ve got a trump judge on board with this. It’s really looks like it was written by the department of Injustice.

And what is legally flawed about the ruling is that they suggest the district judge abused her discretion rather than their discretion might have been different than her discretion. Those are two separate things.

Not a great judge pick, An Obama Judge, a Trump Judge and a Biden Judge.

Hon. Andrew L. Brasher June 30, 2020
Hon. Britt C. Grant August 3, 2018
Hon. Robin S. Rosenbaum May 12, 2014

Trump and his lawyers are sitting ducks for the Lawfare Sharpshooters and Judges.

In other words, the intelligence community has no oversight. They decide and you comply, regardless of the constitution.

Just one more step on the path to an uncivil war.

“But none of those concerns apply to the roughly one-hundred classified documents at issue here”

Whether those documents even are classified is a matter still to be adjudicated, and these geniuses act as if it were already a matter of judicial record.

I don’t understand why the ruling spends so much time on Trump’s “personal interest” in the documents. How exactly is that even relevant? Since when are litigants required to offer evidence of a personal interest before they can assert defenses against government overreach?

smalltownoklahoman | September 22, 2022 at 4:45 am

“But the record contains no evidence that any of these records were declassified.”

More sabotage by those who were supposed to be working for him while he was president? Just never got the proper paperwork done and didn’t tell him?

    From what I understand, Trump ordered these documents declassified then his chief of staff Mark Meadows submitted them to the DOJ to follow through (which is their job). The DOJ then just sat on them.

      Here’s what I don’t understand. If Trump ordered the docs declassified, why hasn’t he shown that order? Or why hasn’t he told the judge the order is in the WH logs and the DOJ needs to find it? Or why hasn’t he presented witnesses who heard him declassify the order? Why hasn’t he presented any witnesses who did or were supposed to take steps to declassify?

      Why hasn’t Trump presented any evidence whatsoever that the docs were declassified. There are a lot of problems with the judges ruling, but Trump has to deal with that ruling. He’s not doing a good job. And if he keeps acting this way, he’s going to be in a world of hurt very soon.

        Barry in reply to dging. | September 23, 2022 at 1:06 am

        Stupidity is no excuse for neverTrumperism.

        The president doesn’t have to do one damn thing for your sake. If he says the docs are declassified and you don’t hear it, tough shit. That’s how it works. He doesn’t have to prove anything, the fact he has possession is prima facie evidence that the docs are declassified.

        He doesn’t have to give a written order.
        He doesn’t have to log it.
        He doesn’t need a witness.

        He doesn’t need one damn thing per the constitution of the USA and upheld by the SCOTUS.

        He will be in no “world of hurt”, not now not ever, because once this goes before the SCOTUS the ruling is certain.

    taurus the judge in reply to smalltownoklahoman. | September 22, 2022 at 8:01 am

    That’s a media created red herring

    For the POTUS ( exclusively and only) there is no “proper paperwork” involved in the declassification process.

    This is part of the “big lie” where 99.99% of the truth is still a lie.

    If this was regarding ANY OTHER HUMAN BEING holding a clearance- the government would be virtually 100% correct in their claim and case.

    The POTUS is the ONLY person ( by position) with his own unique set of rules and they supersede ALL OTHERS. The DOJ knows this.

    This is nothing more that legal “prestidigitation”- watch the pea

      Yes, that’s why I keep harping on the SCOTUS decision in Department of the Navy v. Egan.

      https://casetext.com/case/department-of-navy-v-egan

      Per the Constitution the President is the one and only Commander in Chief. And we only have one CinC at at time. The authority to protect information for the purpose of national defense belongs to the President and the President alone. Note, the Constitution makes no mention of a classification system. The Constitution left it entirely up to future Presidents as to how they’d go about protecting that information.

      Their decisions can’t be overruled by subordinate officers, which are anticipated by the Constitution but not specified. The Constitution simply anticipated that the President would need them to carry out his duties. These subordinate officers have no authority to do anything unless the President delegates them that authority.

      The President’s Constitutional authority can’t be restricted by Congress nor is subject to judicial review. Of course Trump can declassify information simply by “thinking.” Where does the Constitution say he can’t. If a President wants to decide what is and what isn’t classified purely by taping documents to a wall and throwing darts at them the Constitution gives a President that authority.

      The 11th Circuit’s demand for “records” and “evidence” is a direct assault on the separation of powers.

BTW, off topic but this is a big deal. Another bullet we failed to dodge. Ted Cruz just blew up his career: The government/Big Tech/WEF takeover of Big Media will be complete if this goes through.

https://www.breitbart.com/politics/2022/09/21/exclusive-ted-cruz-caves-to-democrat-amy-klobuchar-on-media-cartel-bill/

You can add John Kennedy to that suicide list of phonies too, if he wasn’t on it already.

Once my favorite “conservative, Ted Cruz revealed his blind ambition in 2016 when he so easily unraveled early in his presidential run Trump entered into the race, Next thing you know,Cruz is in LA begging the dirty money for support while turning over management of his presidential campaign to Glenn Beck who turned him into Moses and then the second coming of Jesus Christ.

Good job Ted! Just another phony conservative on a long list of phony conservative Texas politicians. Party of one! Trump smoked “Lyin’ Ted” early. We should have paid attention.

    taurus the judge in reply to Pasadena Phil. | September 22, 2022 at 7:56 am

    Another RINO unmasked.

    I wonder what his price was?

      I suspect he looked at his grim prospects of becoming president as a Republican and could see Trump-DeSantis for the next 12 years and is looking for another path. He’s been an ineffectual senator. Until this, he could say all of the right things has he accomplished anything? Even one thing?

    Actually, he blew up his career at the R convention in 2016. He can barely beat beto in the state of Texas. And that only because beto is such an outright commie.

Apparently, Obama is allowed to keep classified as well as unclassified documents from his presidency in an unsecured furniture warehouse in Chicago.

https://theconservativetreehouse.com/blog/2022/09/21/letter-surfaces-of-obama-foundation-admitting-in-2018-they-keep-classified-documents-in-unsecured-storage-at-furniture-warehouse/

    And Hillary was permitted to scour her 30K+ emails before turning them over to the FBI or DOJ.

    But, “MEAN TWEETS!!,” “Hillary wuz robbed!”, and Obama was the first (half) black president.

    I wonder what excuses they will give for Biden? The dementia angle, or just let the tech midgets and the “unbiased” media bury his record like they buried Hunter’s laptop and Ashley’s diary.

It reeks of Hillary C

taurus the judge | September 22, 2022 at 10:42 am

Here’s a “test” for any of those who either “believe” or are “parroting” the media lie that Trump somehow has committed a “crime in classification or removal.

Please produce the numbered statute that specifically defines and binds the POTUS into some “process to be followed” as any other person would be that “trumps” ( no pun intended) the plenary powers granted to a POTUS in the Constitution.

Don’t describe it, compare it to opinion, tell me all about it or anything else- please produce the numbered codified law or statute exactly as written.

If you don’t then its already over- just playing itself out.

    I have requested that exact same thing in other blogs, maybe even in an earlier post in this one, in disqus threads from news articles, and on Facebook threads. So far- zip, diddly, squat in way of meaningful reply.

    Some hysterical whining “Everything has a procedure” when it’s not actually true, in any organization, that everything has a procedure. And the closer you are to top- the people are bound by them. And in this case- there simply aren’t any procedures.

IMO the first hurdle is the PRA which hasn’t been addressed much less overcome here. The POTUS gets to determine what constitutes his papers. Period. That’s the statute. There isn’t a mechanism for review of the decision. It’s a stupid statute that grants far too much authority but that’s the prerogative of Congress. If the Judiciary wants to now tell Congress they can’t pass stupid statutes then the Judiciary is going to be very busy.

    So, why hasn’t Trump brought up the PRA? Why isn’t he putting up a defense? Why hasn’t he presented ANY evidence the docs were declassified?

      Barry in reply to dging. | September 23, 2022 at 1:09 am

      Brilliant.

      Because he doesn’t have to. It will go through the courts and the ruling will be in the favor of the president, per the constitution.

      taurus the judge in reply to dging. | September 23, 2022 at 7:01 am

      Legal strategy

      First, there is no official charge/specification for him to claim against.

      Second, there is no clear list of documents the DOJ plans to use against him ( by document number) so he is avoiding a potential “perjury trap” by addressing broad unspecified claims ( remember the General?)

      Third- the SCOTUS has made it clear so he is in no hurry.

    Arminius in reply to CommoChief. | September 23, 2022 at 1:53 pm

    Well, actually there is a mechanism. In Judicial Watch, Inc. v. National Archives and Records Administration, Judicial Watch insisted that NARA take control over hundreds of hours of tape recordings that were in Bill Clintons personal possession. They were recorded by a historian whose name escapes me at the moment, but he published books under several variations of the title, “The Clinton Tapes.” Based upon the books it was clear that the tapes recorded not just Clinton’s musings on being President but official acts, such as phone conversations with world leaders and contained information not available in any other source.

    Judge Amy Berman Jackson ruled that the remedy Judicial watch sought simply wasn’t available. NARA simply had no authority to have DoJ seize any records. But if NARA wished to dispute a President’s decision as to what constituted personal vs. presidential records, since the PRA is not a criminal statute, its only recourse would be to ask the DoJ to initiate a civil suit over the records.

    Note that the DoJ defended NARA in the Judicial Watch suit. In other words, when it was Clinton the DoJ was making the exact opposite case as it is now. When it was Clinton, they simply had no authority to seize records on NARA’s behalf. When it’s Trump, all NARA has to do is write a letter and they send in the FBI stormtroopers.

    I wish I could say I’m surprised.

      CommoChief in reply to Arminius. | September 23, 2022 at 6:52 pm

      IMO, the precedent, as you point out, shows the DoJ really doesn’t have a leg to stand on. The fact is a former POTUS has additional power and options unavailable to others. The best part is that the Garland is setting up every former President, much less SR official, who may have retained any items from their term. Hello MR former CIA or DIA guy, please step this way former Sec State …..all aboard the crazy train your partisan allies set in motion.

      So no crying when say Stephen Miller crazy ass is AG and he sends his version of a weaponized DoJ to raid d/prog. That is the new normal, use the DoJ to harass, intimidate, coerce and if possible imprison political opposition. Live with consequences.

This issue is such imnportance that it may very well require an en banc hearing by the full appellate court and argument before and a decision SCOTUS

I think I understand why the Trump lawyers are taking the tactic of not offering any “proof” the documents were declassified. Please correct me if I’m wrong, but in a future criminal trial that is based upon improper possession of or retention of alleged classified documents the burden of proof will be on the government to prove every element of the offense beyond a reasonable doubt. That will mean they must prove beyond a reasonable doubt that:

1. The document went through the proper classification process, and then was designated as classified by a person with authority under the law to make such a classification.

2. The would likely need to prove that the accused knew or should of known the documents were classified.

AND LASTLY

3. They would need to prove beyond a reasonable doubt that the document had not been declassified by President Trump.

Proving 3 will be like trying to prove a negative. Its going to be impossible to prove beyond a reasonable doubt that President Trump did not declassify the document if President Trump says he did declassify it. So far the Master and the 11th circuit court of appeals are trying to switch the burden of proof to President Trump, but that isn’t how our criminal justice system works. The burden of proof is on the government to prove every element of the offense beyond a reasonable doubt, AND THE LAST ELEMENT WILL BE PROOF THAT PRESIDENT TRUMP DID NOT DECLASSIFY THE DOCUMENT.

    taurus the judge in reply to garybritt. | September 22, 2022 at 12:04 pm

    Let me assist you Gary,

    At “best” these “documents” are only evidence and fall under those rules (if and when they ever get used)

    Just go 1 rung higher in the event line and there is the reason they are sitting right now.

    As of this moment there is no specific CHARGE and SPECIFICATION in any indictment anywhere. ( plenty of noise but no official substance)

    Until there is- there is NOT ( that’s the process)

    The DOJ knows this too just like they know they are “locked in” once they issue an indictment.

    Trump’s team is simply not “telegraphing” anything. ( and they shouldn’t ever either)

    The issue in any criminal proceeding against President Trump is that it will be in Washington, D.C. This means the Prosecution can make any claims that it wants with respect to the Law, the Judge will support them in this over Defense objections, the Judge will also handicap the defense in any and all ways (see the Gretchen Whitmer second trial), and the jury will convict. Reasonable Doubt is not a standard when it comes to Republicans/Conservatives in the D.C. court system; the prosecution only needs charges and hearsay evidence to elicit a conviction.

      CommoChief in reply to BillB52. | September 22, 2022 at 3:54 pm

      The alleged criminal activity (unspecified as yet) took place in Florida. Sure the FBI team leading this is in DC but it is far from certain any trial would be in DC.

    Not for a DC jury. if your name is Trump, you are guilty

    Arminius in reply to garybritt. | September 23, 2022 at 2:39 pm

    “1. The document went through the proper classification process, and then was designated as classified by a person with authority under the law</b? to make such a classification."

    Gary, there is no such law, and there can be no such law.

    Only the President, who is Commander in Chief, has the authority to determine what information needs to be protected as national security information. Congress would be exceeding its Constitutional bounds if it attempted to pass such a law and usurp the President's Constitutional authority as CinC.

    The President designates who has classification authority via Executive Order.

    Here's a link to Obama's.

    https://obamawhitehouse.archives.gov/the-press-office/executive-order-original-classification-authority

    Someone needs to grill Garland as to where he thinks as AG he has some independent authority, apart from a President delegating the AG that authority, under the Constitution to decide what is and isn't classified.

Can the Executive branch bury criminal evidence by deeming them classified? (Thanks for taking care of that laptop, dad)

Can evidence against you for a federal crime be marked classified and therefore unavailable to you or your attorney but still admissible in court?

Can depositions from government agents be used against you in lieu of testimony in open court as evidence, as their appearance will compromise “sources and methods” ?

These questions and more courtesy of the 11th Circuit focusing on intergovernmental agency procedures instead of the constitution.

    taurus the judge in reply to George S. | September 22, 2022 at 2:04 pm

    1) Yes

    2) The way you phrased it no- if it carries a “classification”, it cannot be used in an open court and if it were used against you , you would have to be allowed to confront it via the 6th.

    3) Conditionally yes and its HARD to “cross” an affidavit

    It seems the court at least “recognizes” the strategy being played here and is pointing out they are specifically and narrowly issuing calls with strict boundaries. I think they fully see what Team Trump has maneuvered the DOJ into. (I can see the DOJ knows- their actions give them away)

Note that the court mentioned “nothing on the record” regarding declassification. That can be cured by Trump’s legal team getting witnesses to his deeming the stuff declassified on record via an affidavit.

    PuttingOnItsShoes in reply to Maz2331. | September 22, 2022 at 6:15 pm

    Getting what declassified? Docs that he and the judge and the special master can’t even see?

    Why should you be so stupid as to say I don’t know what you have but I declassified it.

    This is a Kafka trial.

    judge: “Did you declassify this?

    Trump: “What’s ‘this’?”

    Judge: “Not gonna tell ya.”

    Trump: “Then I can’t say.”

    Judge: “Guilty!”