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Trump Files Emergency Supreme Court Application To Vacate 11th Circuit Order On Documents Marked Classified

Trump Files Emergency Supreme Court Application To Vacate 11th Circuit Order On Documents Marked Classified

“The Eleventh Circuit lacked jurisdiction to review, much less stay, an interlocutory order of the District Court providing for the Special Master to review materials seized from President Trump’s home, including approximately 103 documents the Government contends bear classification markings.”

While the details of how documents seized by the feds from Mar-a-Lago are battled out in court presided over by Judge Aileen Cannon, and her appointed Special Master, Donald Trump has filed an emergency Application to Vacate the 11th Circuit’s Stay Order as to documents marked classified. You my recall that the 11th Circuit effectively reversed the district court’s order that such documents be subject to review as part of the special master process.

Background Mar-a-Lago Raid: 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 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.

From the Application to SCOTUS:

The unprecedented circumstances presented by this case—an investigation of the Forty-Fifth President of the United States by the administration of his political rival and successor—compelled the District Court to acknowledge the significant need for enhanced vigilance and to order the appointment of a Special Master to ensure fairness, transparency, and maintenance of the public trust. That appointment order is simply not appealable on an interlocutory basis and was never before the Eleventh Circuit. Nonetheless, the Eleventh Circuit granted a stay of the Special Master Order, effectively compromising the integrity of the well-established policy against piecemeal appellate review and ignoring the District Court’s broad discretion without justification. This unwarranted stay should be vacated as it impairs substantially the ongoing, time-sensitive work of the Special Master. Moreover, any limit on the comprehensive and transparent review of materials seized in the extraordinary raid of a President’s home erodes public confidence in our system of justice.

President Donald J. Trump submits this application for limited review3 of the Eleventh Circuit’s Stay Order. The Eleventh Circuit lacked jurisdiction to review, much less stay, an interlocutory order of the District Court providing for the Special Master to review materials seized from President Trump’s home, including approximately 103 documents the Government contends bear classification markings. This application seeks to vacate only that portion of the Eleventh Circuit’s Stay Order limiting the scope of the Special Master’s review of the documents bearing classification markings.

The application in the first instance will go to Justice Thomas, who has responsibility for the 11th Circuit, but it is likely he will refer it to the full court for consideration.

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“The application in the first instance will go to Justice Thomas, who has responsibility for the 11th Circuit, but it is likely he will refer it to the full court for consideration”

If the full court takes the case, will it be expedited? Even if expedited, what time frame are we looking at?

So! At long last! The list of pages the DOJ/FBI is terrified anyone but them will read is down to 103 pages? That probably the number of pages Jeff Epstein’s missing Pedophile Express passenger list consisted of. And the FBI found them in Melania’s panties?

Whatever is in those pages, it can’t be worse than that.

Seems like President Trump is on speed dial with suing and Court proceedings lately

It worry’s me

It even worries me he had ANYTHING at Mar Lago… why? They were Gestapoing everyone connected to him, he HAD to know he was the next stop.
At first I thought he just had filler stuff at Lago, and took the real stuff out of there.

Now I’m not sure of anything.

    As a non-lawyer, it seems to me that SCOTUS is Trump’s last recourse for assuring he receives fair due process. The DOJ and FBI aren’t the only rogue players here. Trump is the only one who has a reason to appeal beyond the 11th circuit court to remedy their butting into a case they have no right to be interfering in. Looks like a rifle shot move to me to restore the district judge’s authority to conduct her business as she sees fit. Judge Aileen Cannon is being treated by the DOJ/FBI like her judgment is faulty.

      taurus the judge in reply to Pasadena Phil. | October 5, 2022 at 8:30 am

      Here’s another “possible” strategy

      Trump knows ( or suspects) that “maybe” the DOJ has “altered’ things ( which might explain that order for Trump to “certify without reading” those documents)

      This could be a way to interdict that.

      Just a possibility

        That is not “another possible strategy”. That is an objective.

        This move is Trump’s attempt to stop the DOJ from fragmenting his defense by having SCOTUS rule against the constitutionality of the federal court interfering in a lower court by overriding decisions by Aileen Cannon they don’t like. This is a District Court case and justice isn’t served by having a Federal court judge interfering. And Trump is arguing that they have no jurisdiction to do so.

        The DOJ was trying to have the Special Master process rescinded. They failed. Now they are appealing to have the case expedited without review of the documents. They are almost certain to fail now and have just made things worse for themselves because if the SCOTUS accepts the case, the proceedings are stalled again and the DOJ is fighting the clock.

        OF COURSE this is about the certification situation. That is the objective.

    JohnSmith100 in reply to gonzotx. | October 4, 2022 at 9:11 pm

    Or at least digitized all the material or made backup copies and stored the stuff elsewhere.

    Aarradin in reply to gonzotx. | October 4, 2022 at 10:00 pm

    Don Jr said that, since his father announced he was running for POTUS, D’s have sued him over 20,000 times.

    So, yeah, he’s gotten familiar with the process.

    mailman in reply to gonzotx. | October 5, 2022 at 4:38 am

    It worries you in general about what EVERY President has at their home after their terms are over or it only worries you that THIS President has something at his home?

    Most sane people would go with the former while the brain dead on the left only ever worry about something when its someone they despise. So its somewhat telling which way you’re worried darling 🤣🤣

      henrybowman in reply to mailman. | October 5, 2022 at 7:09 am

      I think you’re misreading the comment. It doesn’t really worry her that Trump had these documents per se; it worries her that Trump painted a target on his forehead by having them, amidst an obviously adverse political climate in which his enemies knew he had them..

    ss396 in reply to gonzotx. | October 5, 2022 at 11:55 am

    The Left / Dems / DoJ will manufacture whatever charges they need to try keeping Trump off-balance and in court. It’s impossible to anticipate what they might come up with. “Usual course of business” just doesn’t apply to anything Trump. If it hadn’t been these documents, it would have been something else. It is impossible for Trump to NOT be a political target in all this.

    BierceAmbrose in reply to gonzotx. | October 5, 2022 at 3:58 pm

    “It even worries me he had ANYTHING at Mar Lago… why?”

    Rope-a-dope.

    That’s the one move that’s been winning for Orange Man Bad vs. Congress, the Security Apparat, the Administrative State, and both the Screaming-D and Feckless-R parties. And they’re the freaking coyote: they never learn. Meep-meep.

    I think it’s feral and instinctual on The Donald’s part. He’s not running game theory on red teams with Rand probability studies and the CIA fact book in hand. The political system can’t yet figure out how to deal with a guy who acts like he’s doing real-estate development in NYC: everything’s sketchy, encumbered, and PR driven.

It’s been 2 months now since the FBI raided Trump’s resort. He said that all the security cameras were working, and that his lawyers refused to turn them off when the FBI asked for them to be turned off. If the “top secret” documents were planted, as he states, then why hasn’t he released the videos of this? If the photo of the documents was “framed,” then why hasn’t he released the videos yet? Something is not right here. He could have ended all of this months ago.

    randian in reply to JR. | October 5, 2022 at 1:16 am

    The DoJ is trying to suppress publication of Trump’s security video. Trump can’t publish it until litigation is finished.

      You are wrong. I have spent 20 years of my life as a prosecuting criminal attorney Even if the videos are subpoenaed, there is nothing that prohibits Trump from releasing the videos to the media. I have signed hundreds, maybe thousands, of subpoenas for phone records, bank records, etc., and none of them prohibits the owners of the records from releasing the records to the public. There has to be a reason that Trump won’t release the videos to the public and end this
      fiasco,

    mailman in reply to JR. | October 5, 2022 at 4:39 am

    The video has already been subpoenaed by the DoJ.

Unclassified documents that bear the mark, with neither affirmation nor action to redistribute them.

That said, the usual suspected hunting witches, judging warlocks, and deeming babies unfit, again, and again, and again.

Close The Fed | October 4, 2022 at 7:36 pm

Totally appalling in each and every way.

If scotus doesn’t put the brakes on this, the swamp will just escalate and escalate and escalate.

And what about the Kenyan’s docs in a WAREHOUSE.

Someone needs to take responsibility here and stop this garbage before some American people get seriously more pissed off.

The President’s counsel raises some good arguments but in practice how would relief be implemented? Can the documents be provided for the special master to review and while at the same time be used by the DOJ in their investigation?

    Dimsdale in reply to Concise. | October 5, 2022 at 7:49 am

    I was under the impression that the SM was to review all documents for their applicability for the sham investigations.

    He would have to establish if a) the folders weren’t empty; b) if they were declassified and c) were they relevant to the sham investigations.

    But I’m no lawyer…

      taurus the judge in reply to Dimsdale. | October 5, 2022 at 9:52 am

      Here’s a fine point Trump is setting them up for ( been addressed before but people who have never been around sensitive documents may not see the significance of it)

      Applicable to the POTUS ONLY ( nobody else)

      There is no “process”, documentation, special marking or anything POTUS has to do in order to “officially declassify” anything. He does NOT have to “remove” or “add” anything to the document or record it in any way. He doesn’t have to “tell” anyone.

      (Anyone who challenges that simply needs to produce the law by statute number and part of the Constitution that allows it-I would love to read it)

      That being a fact, the SM or anyone else CANNOT make a “finding of fact” that Trump’s COPY of “document 12345” was not declassified EXCEPT BY ASKING HIM ( and with no way to disprove or challenge anything Trump would say)

      I think this is why they tried to set Trump up by stating the DOJ didn’t add anything and for Trump to agree without review.

One point that seems to be overlooked (as I understand it): Every ‘classified’ document Trump had is a COPY. The classification process tracks each copy of the original document by what you can effectively think of as a serial number as it transfers ownership, gets read, etc… So you may have Document 127×4 marked as given to the President for review on (datestamp) and retained for review which is recorded on the original doc so all of the ‘children’ copies can be tracked on the original.

That means the FBI doesn’t *need* access to the copies that Trump had in order to know their contents. They can generate their own copy of Document 127×5 (new copy) for whatever reason they want to review the contents. Effectively the FBI is throwing a meaningless tantrum.

    Barry in reply to georgfelis. | October 5, 2022 at 2:16 am

    That’s what I understand as well.

      Bruce Hayden in reply to Barry. | October 5, 2022 at 11:26 am

      My vote is in favor of Trump here. His attorneys keep sharpening up his arguments. He was lucky that Thomas has the 11th Circuit, but I think that Alito or maybe Gorsuch would have worked too. Most of the DOJ’s LawFare devised strategy is exposed in their brief. They essentially ask the question of how did those documents ended up as classified, if Trump had plenary declassification authority when he selected to documents to remove to MAL. How are those documents still (or again) classified? The two options I see are either that they are not, or the FJB Administration reclassified them – which is likely to blow up in their faces. My guess is that they aren’t, but are trying to get the courts to assume they are, based on their classified markings.

      A lot of things tilting the field toward Trump and away from the FJB Administration. Start with Thomas being one of three Justices backing Trump’s suit questioning the 2000 election. Trump obviously knows Ginny Thomas, while FJB was one of the ringleaders in the High Tech lynching in Thomas’ confirmation hearing. Moreover, the entire case was built on LawFare foundation (essentially confirmed by a LawFare article coauthored by infamous LawFare head Ben Wittes) – putting together different pieces of differing laws to get to results completely disconnected from the intent of those laws. Trump’s motion essentially calls out some of the slight of hand being utilized by the prosecutors, by pointing out that the bureaucrat in charge of the Archives doesn’t have any say in deterring whether a document is a Presidential record or a personal document (but definitely not a government document). The DOJ is using a lot of slight of hand, and smoke and mirrors, here. Trump is, in my mind, the last Justice who would go along with that. So, my expectation is that Alito and Gorsuch would almost inevitably back what Thomas does here. The youngest two Republican Justices are probably likely to follow their lead. And I doubt that Roberts votes to support the DOJ here because that would probably result in him on the wrong side of this mess. Which probably means 6-3 in Trump’s favor, and no Cert, etc.

    taurus the judge in reply to georgfelis. | October 5, 2022 at 8:26 am

    That’s basically correct. Several of us have pointed this out from day 1.

    Here’s where the DOJ is blowing smoke hoping nobody sees the detail right in front of them

    IF (operative word) Trump somehow had “the original” ( and by virtue control of all child copies) and was in a position to somehow “remove them” ( like the Nixon tapes as an example) then the DOJ would have a legitimate case.

    That’s not the case based on the information in the media ( gotta put that caveat in there)

    Based on media accounts- Trump has “true copy” (facsimile in other words) of the document which he declassified ( has that absolute authority)- that’s a different animal.

    The argument is going to be that Trump doesn’t have “The record” ( the archival original) but merely a copy of said document ( which isn’t specifically covered either way in the PRA)

    Then we have the Presidential authority over determining which record is which.

    Then we have the “copy” that possibly Trump has put records/notes for use on the margins ( has made it a personal record since its a copy)

    I think this is why the DOJ is making such a fuss as to keep people from seeing all this as they are focusing on all the other stuff.

      IF (operative word) Trump somehow had “the original”…

      Judicial Watch vs National Archives and Records Administration (March 2012) put a boot solidly down on that argument, since Clinton *had* the original tapes, no copies, and generated during his administration and containing information that was admitted could be considered highly classified. The judge said NARA had no dibs on those docs, period.

        taurus the judge in reply to georgfelis. | October 6, 2022 at 8:36 am

        Not exactly the same though

        In the tape, Clinton was the originator of the source tape, and it was initiated by him, so he is the “author” as well and my understanding is that he was allowed to claim that as “his” for the combination of those factors.

        In the case of these “documents”, unless the POTUS was the “author” (which has not been stated anywhere I have seen) then Trump only had a “certified copy”.

        That means that the USG “has” the original source doc.

        Now the way I read the NARA action and the PRA, (probably similar to yours) is that Trump (POTUS) has the authority to decide what’s what.

    Concise in reply to georgfelis. | October 5, 2022 at 10:35 am

    Sure, I’ll concede that copies may exist in one form or another. But the DOJ (maliciously or not) is conducting a criminal investigation with a grand jury. I would think they would say they need the original document retrieved from Mar-a-Lago for the purposes of their investigation (which I think is meritless and politically motivated). But whatever, I don’t think the SM can review the documents and at the same time have those documents be available for the DOJ investigation.

      taurus the judge in reply to Concise. | October 5, 2022 at 10:59 am

      @Concise

      That’s where the DOJ runs into a problem with their own argument and it falls flat.

      If they say they want the “original” ( lets call that the “source document)- they already have that and Trump has no ability to modify or alter it as its maintained with the owning agency.

      Trump does not and never had a “source document”- he has an “authorized copy” at best.

      Any “need” for a “copy” of a source document to shore a charge in an investigation is bust from the get go.

      Now, Trumps declassified copy has “notes of some kind” written on them. That becomes now a “new source document” because “theoretically’ it could have information unique to that document.

      For the SW and cause affidavit to cover “that” document- it would have to state the relevancy for the charge the warrant was issued to support.

      This is why the DOJ is so nervous and doesn’t want all that information reviewed.

        Well, the thing is, these are, at least in form, criminal proceedings, not an intelligence operation. They’re accusing him (potentially I have no idea) of illegally possessing classified document X, which is just as classified whether it is a copy or not (I assume). They need the thing allegedly illegally possessed to present as evidence. Another version won’t do.

They want to retain the ability to insinuate that President Trump was passing these docs to the Russians, despite the fact that there is ZERO evidence for this.

Gotta keep the story alive though….

Great comments. I always learn something here.

How is it DoJ expedited requests get granted, seemingly, immediately while Trumps takes an eternity to work its way through the system?