Mar-a-Lago Raid: Feds File Emergency Appeal After Trial Court Special Master Order
“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.”
Last we checked in, which was like two days ago, the feds were on the losing end of a District Court Order which not only appointed a Special Master but also reaffirmed that the feds could not continue to use documents seized — including documents marked classified — until the Special Master had a chance to review them. Short version of the Judge’s opinion was that she wasn’t going to take DOJ’s word for anything as to the documents. See this post for detail, Mar-a-Lago Raid: Judge Rejects DOJ Request For Partial Stay, Appoints Special Master.
Sometime last night the DOJ filed an Emergency Appeal with the 11th Circuit Court of Appeals. Here are excerpts from the DOJ Motion:
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. In August 2022, the government obtained a warrant to search the residence of Plaintiff, former President Donald J. Trump, based on a judicial finding of probable cause to believe that the search would reveal evidence of crimes including unlawful retention of national defense information. Along with other evidence, the search recovered roughly 100 records bearing classification markings, including markings reflecting the highest levels of classification and extremely restricted distribution. Two weeks later, Plaintiff filed an action seeking the appointment of a special master to review the seized materials and an injunction barring the government from continuing to use them in the meantime. The court granted that extraordinary relief, enjoining further review or use of any seized materials “for criminal investigative purposes” pending a special-master process that will last months. A36-A37.
Although the government believes the district court fundamentally erred in appointing a special master and granting injunctive relief, the government seeks to stay only the portions of the order causing the most serious and immediate harm to the government and the public by (1) restricting the government’s review and use of records bearing classification markings and (2) requiring the government to disclose those records for a special-master review process. This Court should grant that modest but critically important relief for three reasons.
I can’t check if anything else has happened or other documents filed because as of this writing the 11th Circuit PACER portal is down (presumably from volume).
MORE TO FOLLOW
DONATE
Donations tax deductible
to the full extent allowed by law.
Comments
At this point, can’t see the Appeals Court being any more trusting of the FBI/DOJ than the District Court.
Especially considering that the only one in jeopardy of irreparable harm is Trump.
Normally I would agree with you, but I have had the feeling for some time that Obama is actually in contact with some of his appointees and that a good portion of the FISA Court is way too close to the FBI/DOJ.
Maybe someone can help me understand this process. 6th Amendment right to confront a witness and evidence against a defendant seems to me to preclude the use of classified information by the government in a criminal prosecution. How can they redact the pleadings and evidence due to national security concerns and still proceed?
Anyone?
Would they have to reveal the evidence in order to prosecute? If so would they be violating the same thing they are trying to charge Trump with?
If they sought to introduce the documents into evidence they’d have to let the defense see them. But they can choose not to introduce them, and then the defendant has no rights.
If the documents are not introduced as evidence then the defendant simply files a motion to have his property returned.
The Government’s theory is that since they are marked as classified, they belong to the government, which means that they get to keep them.
Depends on how many Trump hating judges are on the Appeals court.
If “national security” were truly the issue, why did they wait a year and a half to come raid for them?
They clearly do not like the curtain being pulled back.
That point was specifically cited in the judge’s opinion which included a statement declaring that she wasn’t going to grant the DOJ’s insistence that they are the only ones with the power to rule on this.
What is probably sending the DOJ into a frenzy is that the Special Master can file his report as late as November 30 (post-election) while he has the option to submit it before then which could be pre-election. So the threat of an October surprise has flipped from the DOJ to Team Trump.
The Special Master could issue an early ruling declaring all documents to be declassified with the judge then ordering them all released. Then we find out what is in them that has the DOJ so hot and bothered.
https://thefederalist.com/2022/09/16/trump-scores-two-huge-victories-in-fight-for-special-master/
I opined earlier that this could be why Schumer has apparently changed his tune from confident to gloomy regarding the November elections. I am looking to see if his lieutenant Cocaine Turtle gives us any signals.
‘What is probably sending the DOJ into a frenzy is that the Special Master can file his report as late as November 30 (post-election) while he has the option to submit it before then which could be pre-election. So the threat of an October surprise has flipped from the DOJ to Team Trump.’
Going on prior actions of their mad methods of obfuscating the issues to delay, delay, delay…..is there any one thing that might push up to if not past November 30th?
I wish I could answer your question but I am not a lawyer. I think the judge has already made her feelings known about DOJ’s sneaky and obstinate behavior so there’s that.
I read that Federalist article yesterday and encourage others to read it. The DOJ is desperate to stop anyone except them from seeing what is in there. Considering the Special Master sat on the FISA Court, I am puzzled by the DOJ’s argument. The only logical conclusion I can come up with is that they know that if someone see’s what they have then the entire search of Trump’s place will be revealed to be a massive fishing expedition and political hitjob directed by Brandon. The implications of this to the DOJ and FBI are very dire.
Several of the FBI agents involved in the FBI panty raid were involved in the scheme to lie to the Special Master when he approved the FISA warrant in the Carter Page frame up . He has been living under a cloud of suspicion regarding his own integrity every since. He is now in a position to remove that cloud. The DOJ knows they have no credibility nor influence over him. Let’s see if the federal appeals court dismisses the DOJ. I can’t see them ruling to reverse the Special Master appointment which would cast them into that crowded cesspool of scoundrels.
Dire in what sense? Nobody at those agencies will be fired, or even reprimanded, if this goes south for them.
That and immediately leaking some of the contents which did not happen the entire time Trump had them which the Judge referenced as a shot across the bow of the DOJ’s claims.
The idea that “national security” takes precedence over the legislature, the executive branch and the judiciary is absurd. That once asserted, it is the DOJ’s position that the matter can never be reviewed or questioned. And this has been going on since the commencement of cold war. No one is allowed to see the matter concealed…except a bunch of bureaucrats and lawyers, that is. Dozens of individuals with no special credentials other that they are members of the deep state, as it is now termed. And in every instance where the matter protected from scrutiny has been revealed, such few as there are, we see no national security issues of any import, but rather the FBI/.DOJ/CIA/DOD attempting to perpetuate a fraud on the nation, attempting to hide corruption or attempting to hide a crime. This dangerous practice must end immediately.
Asking for someone who knows Federal appellate jurisdiction, but do the Feds have a basis for an interlocutory appeal on this issue? I think in Florida State court the appellate court would not have jurisdiction
Asking for and the court appointing a master where privilege is asserted is actually encouraged in the Federal Courts. It would be extraordinarily unusual for a discovery master to be dismissed prior to examination of the evidence in question.
The DoJ seems to be seeking to eliminate the function of a Special Master and instead substitute itself as the decider of fact. Sure they cloaked it in polite language but accepting their argument would have that effect.
DoJ seems ‘unable to deal’ as the kids say, that the DoJ and IC are subject to to judicial oversight. We shouldn’t be surprised as the DoJ and IC consistently reject legislative oversight as well. They have used these sorts of claims and gotten by with them for so long that a single District CT Judge unwilling to play along has sent them into a frenzy.
And note that over the last two decades the FBI/DOJ have implied they are ‘intelligence agencies” and not criminal detective and prosecutors. They clearly hold themselves above all branches of government. And the American people at large, so much so they create crimes and convict others of the crimes they create.
the search recovered roughly 100 records bearing classification markings, including markings reflecting the highest levels of classification and extremely restricted distribution.”
My wife’s deodorant bear the mark “Secret”. Should we fear an FBI/DOJ raid?
Yes. Make copies of the deodorant.
Team Trump contends those 100 or so ‘classified’ docs, out of over 11,000 seized, were no longer classified.
Biden’s Gestapo claims they are still classified and so critical they must have access to them now. So critical they had no idea they were missing for over 18 months and did not get a warrant that specified those documents in particular. So critical they are now crucial to national security going forward.
They don’t really expect a judge to believe this. No one does. They’re hoping to eventually get to a righteous unethical Trump hating judge who will rule in their favor.
Smart money is betting those ‘classified’ docs are related to the Russian Collusion hoax Biden’s Gestapo created and used to try to stage a coup to remove Trump as POTUS. Evidence of a conspiracy to commit a coup, an insurrection if you will, within the FBI/DOJ, basically.
Oh, and about that document containing ‘information about the nuclear capability of another country’ Biden’s Gestapo says they seized and leaked about to their propagandists in the ‘media’… Note they didn’t report the leaker claimed the document was classified. A printout from a Wikipedia page about any foreign country’s nuclear capabilities would qualify. Or a magazine article.
Janes publications are widely available and have a wealth of information about world military capabilities.
https://www.janes.com/publications
The fear of nuclear “secrets” being leaked is also overblown. There aren’t any big secrets anymore regarding the science and technology of building the bombs themselves. Everyone knows how to build one. And now everyone knows how to build the delivery missiles. And it’s not a secret who has how many of them. So citing “nuclear secrets were released” is largely a political fear tactic.
The real advantage that we have, other than an overwhelming number of these weapons, is that we have lots of new technology yet to be made known. China has already built their military to fight a war they to fight. We haven’t yet built the most important part of our military for the war we plan to fight. And we can ramp up production must faster than anyone else and introduce new weapons our enemies have yet to steal or (or buy from our crooked politicians).
We also have the superior geography. The only country left who has the military might, energy and food to fight everyone off. We don’t have to participate in the world’s wars if we are prepared to make some temporary sacrifices to our standard of living. Let the rest of the world blow themselves up. It would be far less costly to focus our military on protecting the homeland than be the world’s police.
It’s good being us. If we grow up.
You’ll never convince me that Adam Schitt wasn’t behind these “leaks” regarding national security
Lying about supposed information known only to those with security clearance is what he has done for 6 years of
As you say, it isn’t about getting nuclear divides to work, but to work well. To eake out a couple more kilo, or milo tons of explosion. But isn’t what Trump would have taken anyways. He is too patriotic to steal our nuclear weapons technology, and it wouldn’t interest him anyway. No – if there are nuclear secrets involved, they are very likely someone else’s. Most likely it would be Iranian nuclear secrets, and of interests to Trump only in showing the perfidy of Obama when negotiating with them. Note, the rumors are never about US nuclear secrets. They just talk about nuclear secrets, and leave everyone believing that they are ours.
And remember, it is the FBI’s Counterintelligence Division (CD) that seems to be driving getting documents marked as classified back, presumably so that they can be disappeared. The CD was at the center of the RussiaGate investigation. Former CD deputy associate director Strzok opened the Crossfire Hurricane Investigation. CD attorney Clinesmith was the one who changed a document in order to explicitly lie to the FISC about whether Carter Page had been working for the CIA. Moreover, it turns out that they hired Igor D, Steele’s primary subsource as a confidential human source, shortly after Steele had been fired, and was hired such during the last two FISA warrant applications, including the one that Dearie signed. The CD didn’t tell the FISC judges this in their FISA warrant applications, nor that they knew that Igor D had made it all up sitting around bars in Georgetown, nor that the CD had opened an investigation into his attempt to get classified information and sell it to Russian intelligence a decade ago. The investigation was closed when he fled to the UK for a bit. None of this was disclosed to the FISC, and esp to Judge Dearie. Pretty gross lying by omission. And we know that the CD is behind much of the MAL raid for several reasons. They are the organization who logically be most interested in the documents, because that’s their job. But, also, their head, their Associate Director was the one who wrote a letter that was attached to the Government’s Reply to Trump’s Motion for a Special Master, explaining why they needed the documents and Trump shouldn’t get them back. Making this more egregious, many of the documents marked classified probably came from the CD in the first place, which means that they likely still have the originals, Trump merely has copies, they were the organization that would have had to carry out Trump’s explicit order to declassify the binder full of (probably mostly CD) RussiaGate/Crossfire Hurricane documents, and apparently didn’t.
I keep seeing the DOJ use the term “Classified Markings” in their filings instead of just using Classified documents. My theory is that these documents also have handwritten markings stating that:
Declassified on xx/xx/xxxx date by President Donald J. Trump then his signature..
That is all it would take to make them unclassified and why they do not want anyone to see them.
For a long time, my thought has been, why didn’t Trump just do that to these documents? He could have, at any time. I never considered that he might have, and just nobody is admitting it.
Maybe, but it’s unnecessary. It wouldn’t surprise me if Trump had indeed declassified the documents but never bothered to write that on the documents themselves. After all, he knew they were declassified.
A court has already said “classified” documents in the hands of an FPOTUS are “presumptively declassified”, because there exists no required process by which a POTUS declassifies documents. Indeed, a POTUS’ mere handling of classified documents as if they are declassified can be sufficient to declassify them. Because POTUS has plenary authority to declassify, it can’t be presumed that a POTUS has committed a crime by mishandling classified information because it’s preposterous to assume that a POTUS is committing a crime when he could have avoided the crime by considering in his own mind that the documents are declassified. It is impossible to prove otherwise.
There is no way of knowing if Trump declassified these files by writing on them. In fact, it’s still not clear if a President has to do anything other than say they are declassified. We do know that Trump, during his last year in office, tried to declassify quite a number of documents and the DOJ/FBI slow walked everything to try and wait him out.
If they don’t need the documents to prosecute, exactly what is the govt asking for.
Worse, maybe, Trump in his last full day in office formally (Presidential letterhead, personal signature, photographers snapping away, etc) ordered a binder of RussiaGate documents declassified his last full day in office. This isn’t declassification by implication, but rather the President, utilizing his power as the Constitutional head of the Executive branch, and as Commander in Chief, explicitly and formally ordering their declassification. This would have overridden the EO by Obama that laid out who could declassify what – except that it was completely in conformity with that Obama EO.
Well, in case it wasn’t clear they’re gonna try to use “national security” to trump (I crack me up.) anything that might stop them.
If they believe what they’re saying, these “National Security” weenies have been in their own soup too long.
“National Security” isn’t an end; it’s a means. Are we meaning “National Security” as in securing the national apparatus, including from the people, or providing security for the nation, as in the people? Either way, the activity of “National Security” screws up when it steps on the stuff it’s there to hold space for: people or government doing their thing.
The way these guys are doing “National Security” on this issue — which is what, exactly? — isn’t helping keep Melania secure in the “peaceful enjoyment” of her underwear drawer. It’s not much helping law-enforcement, confidence in institutions, the upcoming election, or … the list goes on.
I suppose what’s left is helping themselves.
I don’t know if this is breaking news but NewsMax is reporting that Special Master Judge Dearie has ordered both Team Trump and the DOJ to appear at the preliminary hearings at the Brooklyn Federal Court House. If he means before their appeal has been ruled on, what would that mean?
https://www.newsmax.com/politics/donald-trump-doj-brooklyn/2022/09/16/id/1087890/
I don’t know what happens at the preliminary hearing but if the DOJ shows up before their appeal is heard or ruled upon, does that mean they have waived their right to appeal? Kind of like with the claiming the 5th and then blabbing?
Or if they don’t show up, have they forfeited any opportunity to stop the Special Master from proceeding without delay? Judge Cannon seems very determined to get this over with as quickly as possible.
The doj filing glosses over numerous things.
First of all they include lots of legal conclusions stated as fact, when in reality they are items to be adjudicated that are highly fact-intensive and complicated legal questions, several of which have no precedent given the doj has never raided a former president.
Secondly, even though the judge has made it clear that a former president has a status and rights and potential defenses that are different from ordinary citizens, the doj continues to try to insist that the former president is more like an ordinary citizen. The judge is not falling for that.
Also, the judge recognizes that there are many defenses that Trump may raise but hasn’t raised yet because he doesn’t even know the content of what was taken and hasn’t had the time to ascertain and assert what rights he might try to protect and defend, whether they be personal attorney client privilege, whether they be executive privilege, or whether they be a question of personal versus presidential records, etc.
Nor has Trump yet challenged the validity of the warrant, which the judge recognizes he may at some point do. So, all of these things would be preceded by Trump and his team knowing exactly what was taken, number one, and what rights and privileges and defenses they may assert after knowing that, number two.
The doj is also acting like the subject of a warrant can’t act to suppress and protect evidence prior to an indictment or a trial. That’s crazy; if the authorities have illegally obtained evidence, and absent the illegally obtained evidence there wouldn’t be an indictment or a charge, the appropriate time to suppress the evidence is prior to that.
The doj’s assertion that there’s some time urgency is also incredibly transparent; the only urgency is to get an indictment before the midterms.
Also, in the extraordinary circumstance of this particular person in the form of a former president, and the dubious circumstances, the use of the Magistrate Judge instead of an article 3 judge to get a warrant seems dicey too. The judge realizes that an indictment emanating from a warrant and legal theories that were improper to begin with is something that needs to be protected against above all other considerations.
Finally, even if you take the doj at their word, a warrant that it resulted in taking 11, 000 items, of which they say only a hundred or germane to the question they purport to be investigating, they’re admitting that 99% of what they took wasn’t relevant to their investigation. That is nearly axiomatically an improper warrant or an improper execution of a warrant.
We know what this is all about and we shouldn’t even pretend to have to respond seriously to their bogus arguments but unfortunately Trump does
First of all, I love your nom-de-blog.
They’re not saying that. They’re saying that these 100 documents are clearly government property, and therefore so obviously not covered by attorney-client privilege that there’s nothing for the special master to determine about them, so he shouldn’t be allowed to even consider them, and they shouldn’t be enjoined from pursuing investigations based on them. (As for executive privilege they reject the entire idea that Trump could possibly have any, so the special master shouldn’t even be looking into that. The only privilege Trump can have is attorney-client, and they say these documents can’t possibly be subject to that.)
They’re not conceding anything about any of the other 10,900 or so documents.
Of course they are not saying that in words, but given the subject they purport to be investigating, the documents “marked” classified would be the the main evidence. It is the most reasonable inference, and more likely than other scenarios. Given we know that they caught up personal records, privileged records, clothes, passports, and other junk, we know they way overdid it. They didn’t mean to say it, but they said it nonetheless. My comment wasn’t meant to say they “conceded” that, but any reasonable observer can see the high likelihood of my comment being true. Not claiming certainty, none of us have seen anything.
Regarding their claim that the marked documents are government property and he can’t possibly have any claim of anything, that falls into the category of my comment: “they [doj] include lots of legal conclusions stated as fact, when in reality they are items to be adjudicated that are highly fact-intensive and complicated legal questions, several of which have no precedent given the doj has never raided a former president.”
Exactly.
Yep. Most of DoJ arguments are eviscerated when the PRA is applied. The outgoing POTUS has the final say on what constitutes his papers.
So if DJT had decided the contents at Mar a Lago were part of that then end of story. The Clinton’s already litigated this and the precedent from that case covers classified docs.
The issues surrounding whether the docs were declassified by DJT and subsequently reclassified by Biden may not survive that test. Only then does the DoJ get to argue about the intricacies of classification and storage as it relates to a former POTUS. That question is far from clear but leaks towards the position of DJT.
IMO, this was not about trying to successfully ‘get Trump’. It was intended to:
1. Muddy the water and damage the Trump political brand for midterms
2. Serve as a brush back pitch at the populist right and disrupt Trump world
To CommoChief:
Robert Barnes says that if a sitting POTUS reclassifies documents in the possession of a FPOTUS, the only thing that does is prevent public distribution of the documents. A FPOTUS has unrestricted access (on demand) to documents from his own administration, so he’d still have authority to possess/have access to such documents even if classified/reclassified.
The classified markings mean no such thing. Only if the documents are still classified, and that has yet to be determined. Otherwise, they are merely copies of formally classified documents. And the minute that the documents were declassified, they lose control over the copies. Millions of copies of formally classified documents floating around.
I should also note that the organization behind this is almost assuredly the FBI’s Counterintelligence Division (CD), which likely has the originals of many of those documents marked classified they seized in their MAL raid – because many were probably from that binder of RussiaGate documents that Trump formally ordered declassified his last full day in office. And because of their content, many were very likely created by the CD.
What Trump had, that the CD wants back so desperately, are almost assuredly all copies, with the CD likely owning the originals to many of them. That means that they aren’t necessary for the DOJ’s case, except to show that Trump had them, and that somehow violated either the Espionage Act or the PRA. The DOJ or CD almost assuredly have originals of most of the documents marked as classified, and copies of all of them. They know what Trump had, and don’t really need Trump’s copies to proceed to an indictment, unless their goal is to somehow indict him for having those copies. (Based on LawFare type (and likely created) creative statutory misinterpretations). Unless their real goal is to disappear the documents, and esp the ones embarrassing to the CD (which would arguably violate Obama’s EO that states that agencies can’t use classification to prevent embarrassment).
Can someone explain the hurry? This thing puts me in mind of a scene from “A Man For All Seasons.”
https://www.youtube.com/watch?v=d9rjGTOA2NA
The timing seems to be important to the DOJ. There must be something in those documents that if revealed, will upend the Dems chances in November. Read the Federalist link I posted above at 5:37 pm.
I think that there are two parts to the hurry. First and foremost, we have maybe six weeks until midterm elections. There are suspicions that the indictment of Trump was their planned October Surprise. Why would the government take sides here? Partly, of course, the head of the government, as well as of most of the agencies, are Democrats (the FBI in interestingly not one of them). Rather, I think that what is feared is a Republican House, and maybe Senate, investigating the FBI and DOJ. There is plenty to investigate in the RussiaGate scandal, with the revelations this last year from the Durham Special Prosecutor indictments and the like. But their real fear is probably their targeting of Trump supporters, in general, and their J-6 indictments and trials, complete with holding their targets without bail, in squalid conditions, for extended periods of time, violating Speedy Trial protections. They are now going after Trump attorneys, and even the My Pillow guy. They are even threatening sitting members of Congress. I fully expect, esp if the Republicans take the House, to see vigorous investigation of these highly political investigations.
Esp worrying to the FBI’s CD is that they grossly misused their PATRIOT Act and FISA powers for political ends. I expect at least some proposed changes to rein them in. These powers should not be able to be used against American citizens, and yet, these days, they are, by, for example pretending that their political opponents are working with the Russians (turns out it was Crooked Hillary and the Dems with the ties to Russian intelligence in 2016). It’s the CD that most uses (and misuses) these powers, and not surprisingly seem to be at the center of the MAL raid, etc.
I also though think that the DOJ (and FBI CD) know that their case is built on sand. They seem to have built their case on the sand of LawFare inspired (and probably developed) creative misinterpretations of several statutes, including the PRA. They don’t want too close of judicial scrutiny, esp by Republican judges, because all of that sand is very likely going to wash away, if the courts look too closely. Moreover, the Biden Administration apparently had a big hand in this by ordering the Archives to share anything that they have of Trump’s with the FBI. This created a very incestuous relationship between these two organizations – if the FBI wants anything from Trump, they ask the Archives, who then requests that the FBI gets it from Trump, which then goes to the Archives, and right back to the FBI, all without the necessity of a valid search warrant based on probable cause, and only on the Archive’s assertion that they should have it, and not Trump.
When you allege national security without any factual back up you should be laughed out of court
The corrupt government is trying to cover up it’s corruption. Something in the documents is damning, and they don’t want it out. I’m guessing that the Trump team doesn’t even know the connection, yet.
“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.”
DOJ created an unprecedented situation. Now they complain that the situation has resulted in an unprecedented court order ruling against them.
My dirty mind yammers that one reason the DOJ seeks a stay is because they have already made impermissible use of the documents, and they want that ethical lapse to become moot.
The only reason my mind has gotten so dirty is that I have been watching the DOJ’s recent ethical lapses, and sadly, my opinion of them has dropped all the way to sludge.
Said claims (“highly classified”) and (“it’s own”) are issues to be adjudicated, not facts.