Mar-a-Lago Raid Judge: Trump Can Review Seized Materials Before Stating Objections To Inventory, As Feds Seek Expedited Appeal
Rejects key part of Special Master Case Management Plan: “There shall be no separate requirement on Plaintiff at this stage, prior to the review of any of the Seized Materials, to lodge ex ante final objections to the accuracy of Defendant’s Inventory, its descriptions, or its contents. The Court’s Appointment Order did not contemplate that obligation…”
Last we checked in on Trump’s lawsuit over the Mar-a-Lago Raid, the feds achieved a victory in the 11th Circuit, which ruled that the feds could continue to use the documents marked classified and that the docs did not have to be reviewed by the Special Master or the District Court, 11th Circuit Grants Partial Stay of District Court Special Master Order As To Documents Marked Classified:
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 prohibited the feds from using those documents as part of a criminal investigation until review by the Special Master.
The appeals court noted the limited scope of its ruling:
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.
The remainder of the District Court’s Order appointing a Special Master remained intact. But the feds have now signalled that they are appealing the entire procedure of appointing a Special Master and restricting use of even personal Trump records pending Special Master review. In a Civil Appeal Statement filed on September 27, 2022, the feds stated the issues to be raised on appeal covered the entirely of the Special Master appointment:
(1) Whether the district court erred by exercising jurisdiction over Plaintiff’s motion seeking an injunction and appointment of a special master to review Plaintiff’s potential claims of privilege, including executive privilege, as to records seized under a judicially authorized search warrant?
(2) Whether the district court erred by granting a preliminary injunction and appointing a special master to conduct the requested privilege review?
On September 30, the feds filed a Motion to Expedite the appeal.
Separately, the Judge made the sensible decision to reject a proposed case management plan issued by the Special Master which would have forced Trump to state whether the government’s inventory — supported by a newly filed affidavit — was complete and accurate, and any objections as to documents, before Trump’s team even got a chance to review the documents.
Upon review of the matter, the Court determines as follows. There shall be no separate requirement on Plaintiff at this stage, prior to the review of any of the Seized Materials, to lodge ex ante final objections to the accuracy of Defendant’s Inventory, its descriptions, or its contents. The Court’s Appointment Order did not contemplate that obligation; Defendant since has complied with the requirement to attest to its now-revised inventory [ECF Nos. 91 ¶ 2(a), 116-1]; and the parties and the Special Master now are situated to proceed forward with the review process pending exchange of the actual materials. Should any additional matters surface during the Special Master’s review process that require reconsideration of the Inventory or the need to object to its contents, the parties shall make those matters known to the Special Master for appropriate resolution and recommendation to this Court.
This ruling set of a feeding frenzy of vitriol against the Judge from the usual suspects on Twitter, and also some of the not usual suspects:
So stupid to argue Judge acting in bad faith b/c she is giving a litigant opportunity to review the actual documents before certifying inventory is complete and raising any objections. If it wasn't Trump all #TheResistance law profs and lawyers would say that's reasonable. https://t.co/Fv4Q6MzZn3
— William A. Jacobson (@wajacobson) September 29, 2022
No. She was clear in her initial order. She would have the last word, and he accepted these terms. Did you read those initial orders? It’s her case, not his.
— Harmeet K. Dhillon (@pnjaban) September 30, 2022
If you think MAGA hack Judge Aileen Cannon must be impeached after she just sided with Trump AGAIN by slapping down an order from the Mar-a-Lago case Special Master demanding that Trump supply evidence for his false claims that the FBI planted evidence — retweet and follow us!
— Occupy Democrats (@OccupyDemocrats) September 29, 2022
JUST IN: @ReallyAmerican1 is partnering with @calltoactivism to file a complaint of judicial misconduct against Judge Aileen Cannon.
RT IF YOU SUPPORT OUR ACTION!
— BrooklynDad_Defiant!☮️ (@mmpadellan) September 17, 2022
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Comments
Oh oh — Democrats not winning, the rules must be changed!
Due process is so inefficient. Tyranny is expedient and saves time. And so the feds will appeal to for rejection of the entire Special Master process in order to avoid having to disclose to anyone, including the defendant and judges, an itemized list of seized materials. Trump is supposed to certify that list without seeing it? Added to the secret search warrant and secret affidavits, what are the judges supposed to be ruling on?
The only thing the feds are agreeing to is that the raid took place. Everything else is no one’s business. A rogue executive branch probably under the direction of global interests (hint: rhymes with WEF).
Once again Phil,
This is “urgency” on the left’s part which indicates o me they are motivated primarily by fear still.
Very telling indeed.
It seems Team Trump is fully aware of this and is setting the pace ( they are in the driver’s seat)
Trump must really have something big and the state is not certain thy can stop it by the usual means.
One wonders if certification without review could lead to some sort of perjury trap, or a “well, he didn’t claim it, so it wasn’t there” excuse by the FIB and the DO(IN)J
it most CERTAINLY can
That risk has now been removed. The DOJ is now forced to reveal their list to the judges and Team Trump which they will continue refusing to do because…??? (What exactly are they afraid of?) So if they want to end this before the elections and move on with the next step of their plan to stop Trump, it looks like they have to find a way to negate the Special Master appointment and demand quick settlement on their terms and only their terms. Good luck with that. The judge has already spoken on the DOJ’s acting like they have the final say on everything.
The tide seems to be turning, looking forward to seeing fire and brimstone reigned down upon so called Dems-progressives who really are subversive Marxists.
“Marxist” is too refined; call ’em what they are: communists.
They’re really tyrants.
All of these Dem front groups…. any bets on their fundings is skimmed or kicked back from money funneled from the government through channels?
If they really want to overturn more than two centuries of universal consensus and open the door to impeaching judges for making decisions Congress doesn’t like, they should understand that once that door is opened it doesn’t close again.
Good. I’ve had my fill of federal judges and justices imposing imposing their garbage political policies from the bench. Far to much hesitation to impeach or remove for bad behavior. About time for some “judicious” use of the removal processes. And no, to anticipate your inevitable response, removal in this case would not be wise or proper.
Judges can be removed for bad behavior. Nobody disputes that. But for pretty much our entire history we’ve accepted that they cannot be removed for their decisions, no matter how bad Congress thinks they are. A decision is not misbehavior. Without that rule, how can you preserve judicial independence?
The federal judiciary should not so independent that they can with impunity impose any political policies they want under the guise of a judicial decision. Of course there are times removal can be inappropriate, Where removal is instituted for malicious political reasons, no. But the pendulum has swung too far to the complete deference side since Justice Chase. Rather like the over-deference to the DOJ (which thinks its a separate and independent branch of government as evidenced by the Russia collusion nonsense and the present Mar-a-Lago incident.) Maybe the Civil War could have been avoided if some removals had occurred after Dred Scott?
You just made his point for him.
I’m sure that makes sense to you. Can’t tell for sure myself because, at least for me, it’s still to early for alcohol. And I also confess I have a hard time relating to the sophomoric.
I do think the courts themselves need to better manage the garbage from lower courts though. I also feel the courts should prevent people from coming before the bar once they document and prove a person has misled the courts.
As the “nuclear option” indicates, the left is pretty shortsighted and oblivious to the ramifications of their actions.
It’s like they are stupid or something…..
That’s not a bug to a progressive, it’s a feature.
They’re trying to burn down the system, so they can build it back better
If the precedent is set, can we crosshair Emmett Sullivan first?
https://mobile.twitter.com/JamesSnodgrass_/status/1569412919603109888/photo/1
God bless President Trump and his family
This should be interesting to watch as it unfolds
On a related topic. The 11th circuit ruled the SM can’t review the 100 classified docs. Is Trump planning to appeal en banc? And to SCOTUS if need be? I have seen any indication of that.
At some point, someone in the court unrelated to the executive branch has to review the docs to verify the docs are classified, were classified properly and were never declassified, right? Trump can’t be convicted of a crime based solely the word of the DOJ, right?
The DOJ can’t say: “Trump murdered someone. We can’t tell you who it was. We can’t show you the body. And we can’t let Trump see the evidence we have. But trust me, we have the evidence, and Trump is guilty, right? Right?
I believe that part of the strategery is to push any governmental use of the documents past the election, because the J6 committee wants to use them in any way it can, or, in Schiffian fashion, allude to something that isn’t there.
The (alleged) fact that they were classified is irrelevant. The government argued, and the 11th circuit panel agreed, that the fact that they were marked classified means that they were indisputably government property, in which Trump can have no “possessory interest”. Therefore they could not be subject to attorney-client privilege. Declassifying them (if he really did so) wouldn’t change that.
And he can’t assert executive privilege, because that belongs to Biden, not to him.
So, the panel said, the special master has nothing to decide as to those 100 documents, so there’s no reason to let him look at them.
There seems to be this notion floating out there that a president (or ex-president) can just designate government papers as his personal papers, and presto changeo they’re his. That’s obviously not true. He’s entitled to keep his personal papers, and he gets a lot of latitude in identifying them, but if we know something was not his it can’t become his just because he wants it!
Presidential Records Act, Who evaluates what records are personal or belong to the government? Not the DOJ and not you.
Government documents by definition belong to the government. If a document was classified it was a government document.
Thanks. And I maybe I’m missing the point. I think you might be saying the SM was only saying Trump had no possesory interest. My point is that Trump, and the court, have a clear interest in examining the docs. Just because the DOJ says they are classified and just because they have classified markings, doesn’t mean they are legally classified, nor does it mean they haven’t been declassified.
The docs may have been classified by someone who didn’t have the authority to classify them. More likely, the docs are embarrassing to the DOJ or show evidence of crimes by the DOJ. And you can’t classify docs to avoid embarrassment or hide a crime. (If they showed the FBI lied to the FISA court, the obvious example).
Trump may also want to argue mitigating circumstances. If the docs are the details of his trip to Afghanistan, then they were highly classified at the time. And while they may still be technically classified now, they clearly have no national security value now.
The court and Trump must be able to review the docs at some point. Otherwise, Trump has no ability to defend himself.
It doesn’t matter whether they’re classified now. If they were once classified they must have been government documents. And those cannot become Mr Trump’s personal property just because he wants them.
The PRA seems pretty clear that the outgoing POTUS has the final say on what constitutes his papers. IMO, the grant of authority is too broad but that’s on Congress. The PRA is similar to the Antiquities Act in that ultimately we rely upon the POTUS to exercise the grant of power narrowly.
I am willing to be convinced that there is some limiting principle on the PRA but no one seems to cite it from the statute. The arguments against the broad PRA view seem to always be should not v can not.
I agree with your comment. But the begs the question: Why hasn’t Trump asserted the PRA?
Strategic, doesn’t need to yet.
Trump isn’t telegraphing- he is taunting the DOJ keeping them off kilter
No, it doesn’t. On the contrary, it defines what are personal papers and what are presidential.
It also requires the president to classify all papers, based on their nature, as “presidential” or “personal” upon creation, not whenever he feels like it. It does not authorize him to change that classification later.
At any rate it’s obvious that a document that has been recognized as government property can’t magically become the president’s personal paper. That’s called stealing.
CommoChief, here’s the text. Please show where it gives the president the powers you’ve asserted.
Milhouse,
The PRA offers up guidance via definitions but also explicitly leaves the decision of whether documents are categorized as personal records or Presidential records up to the POTUS.
The Archivist can follow the process of alerting the appropriate Congressional Committee if the Archivist has a different interpretation.
Every document that enters the WH is then categorized as either a personal or Presidential record by the executive. This notion that a particular classification has any relevance as to ownership is not logical.
That marking is like me purchasing a book, writing my name in it then at a future date giving the book to the library who then sells it to you ten years later. It’s yours now, my marking has jack squat to do with anything.
All govt docs have a classification, even the ones marked ‘unclassified’. A classification marking doesn’t denote govt ownership nor does it automatically denote the actual classification status.
As an example all TM, technical manuals, and FM, field manuals, have a classification marking on them. They have been sold by the govt printing office to the public for decades. Today most are electronic pubs but many/most are still available for free download to the public despite their classification.
Hell, I still have a footlocker full of the damn things. Is the govt going to raid me? How about the millions of other folks who have the same in their attic or garage?
I have a multitude of awards and decorations earned in the Army. I have medal, the award certificate and the award citation. The damn citation has a classification printed on the form. So do millions of other Veterans.
You seem to be asserting that the presence of a classification marking on a document automatically makes that document govt property. If so then the FBI is going to busy as hell trying to recover all these docs.
Show me where it says that.
On the contrary, it says exactly what makes a document a presidential record or a private record. It’s the document’s nature that makes it one or the other, not the president’s decision.
Regardless of this, once something has been established as government property, how can it become the president’s private property? In what way would this conveyance have happened, and on what grounds? In the case you give, the government sells the textbook; that’s how it becomes private property. Did Trump buy these documents from the government?! Obviously not. Would he even have been entitled to sell them, whether to himself or anyone else?! I don’t see under what law he could do so.
As you see in the act, a document from its creation is either a presidential record, and therefore government property, or a private record, and therefore private property. And a private record belonging to the president would not have a classification marking on it.
Milhouse,
The PRA explicitly states sec 2203 (b) that the POTUS:
1. shall make the determination (who)
2. when practicable (when)
I have been consistent in arguing that IMO, this is too broad a power. The fact is the statute is written this way so as not to have Congress directly challenging the power of the Executive to avoid separation of powers issues/conflicts.
Just as with the Antiquities Act the POTUS decides and we all hope he makes narrow v broad decisions.
The classification drama is a side issue and frankly not worth discussing until the PRA is overcome. The DoJ should be trying to undermine it first. Instead they are skipping ahead. Fine but a marking doesn’t make something classified. It indicates that it:
1. Had a classification at one point
2. Might still be classified
It doesn’t automatically denote the current level of classification nor does it automatically denote ownership.
For example who owns my medical information? The DoD? The VA? My private physician? The insurer? All are custodians and all have a work product claim but don’t I own the information? Certainly I have privacy right interest in them. Both Hippa and PII work to protect my interests.
The PRA has a procedure for disagreement between POTUS and the Archivist. That procedure doesn’t include the FBI sending a raid to seize records in dispute.
Wrong, any documents provided the president from other departments are automatically copies. If the president writes notes on them. Those notes are PRESIDENTIAL records thus the underlying document becomes presidential records. Also documents that were used for presidential actions that are declassified can become presidential records by direct reference or by attachment.
And presidential records are by definition government property and not the president’s property. He can’t just convert them into his property!
I am also going to clarify a few things towards my point above.
We don’t know what those documents are and where they originated and classification does not denote that. What is law by the PRA is that records/documents generated in the White House are automatically presidential records and by definition there can be no other way.
Also when a president uses information from another departments and reason for a presidential action, that information also becomes a presidential record.
Case in point: say daily intelligence reports show that bag guy “Mr Big” was killing children enslaving women and turning bambi into brain eating zombies. Then the intelligence reports say Mr Big will be at X location at Y date and time. Mr president gives the order to put a JASSAM in his bedroom window. it stands to reason that all the evidence used in the decision as well as the intelligence reports used to decide the place and time of the strike then become part of the Presidential record. Even if its for nothing more that for future legal justification of the strike it is still part of the presidential records.
good luck getting people to realize that. Hope your attempt fares better.
You’re not helping yourself. Presidential records are government property. The president cannot change that. Personal records are his own property. The law specifies what is a personal record, which remains his, but it’s been claimed that he has a lot of latitude in how to classify a document when it’s first created, and if he says it’s personal it would be a big burden to prove him wrong. OK, maybe that’s so. But that doesn’t affect documents that are clearly presidential records and not personal records. It’s blindingly obvious that he can’t just say they’re personal records and magically make them so. And since his personal records are not classified, if something is marked classified it must be a presidential record. Once that is so, it can’t change status to personal, and thus become his property.
I don’t know any of your qualifications but this clearly guy, Mike Davis, has some on the matter.
bloomberg.com
Trump’s Classified Disclosure Is Shocking But Legal
Why federal laws that criminalize the revealing of secrets don’t apply to the president.
https://t.co/y9JMAgdcz8
If I follow, first, Special Master made procedural ruling; “Trump n Co can’t see what was took before certifying things about what was took.”
Then, Judge who Special Master appointed by, and helping using Judge’s delegated authority, ruled two things on that;
1 — Procedure not in your sand box, SM. (AIR SM to review and categorize seized materials for ownership, attorney-client, presidential record, and classification.)
2 — Rdiculous to assert that seized people’s side must assert what they think is what without seein what was took.
When do we get from SM a list of the haul, annotated w/ category by item? Seems the DoJ is trying anything to stop that from happeneing.