Trump To 11th Circuit: Deny Feds’ Motion for Partial Stay, District Court Acted Properly
“Recognizing the extraordinary circumstances presented by this case, the District Court determined that the appointment of a special master and entry of a limited injunction were “fully consonant” with “the public interest, the principles of civil and criminal procedure, and the principles of equity.”
Donald Trump filed his response to the feds’ Motion for a Partial Stay, seeking to reverse that part of the District Court’s ruling that pending review by the Special Master, the feds could not use seized document marked classified, as part of the ongoing investigation. The Special Master is moving quickly, with a preliminary conference scheduled at 2 p.m. today.
From the Response summary of argument:
This investigation of the 45th President of the United States is both unprecedented and misguided. In what at its core is a document storage dispute that has spiraled out of control, the Government wrongfully seeks to criminalize the possession by the 45th President of his own Presidential and personal records. Recognizing the extraordinary circumstances presented by this case, the District Court determined that the appointment of a special master and entry of a limited injunction were “fully consonant” with “the public interest, the principles of civil and criminal procedure, and the principles of equity.”A13.1
Having failed to convince the District Court to impose a stay of its Order, the Government now asks this Court to “presuppose[] the content, designation, and associated interests in materials under its control,” A7, and to preclude any review by a highly regarded and jointly recommended special master of what the Government unilaterally contends are “classified records.” This Court should, respectfully, decline the Government’s invitation to proceed directly toward a preordained conclusion.
The District Court did not err in temporarily enjoining the Government’s review and use of records bearing classification markings for criminal investigative purposes because the merits support that narrowly tailored injunction. Moreover, this Court should deny the Government’s request to stay the portion of the Appointment Order requiring disclosure of the purported “classified records” to the Special Master because that Order Appointing Special Master, AA78,2 is simply not appealable under 28 U.S.C. § 1292.
A Preliminary Conference is scheduled before the Special Master at 2 p.m. today. The feds and Trump have submitted separate agenda for the conference. Given the conference could implicate the handling of the documents marked classified, I would not be surprised by a rapid 11th Circuit ruling on the motion for a stay.
MORE TO FOLLOW
It is not the job of the Appeals Court to say what they would do if they were sitting as a District Court Judge. Their job is only to look at what Judge Cannon has done and determine if it was within her discretion to act in that fashion. District Judges have enormous discretion.
— Shipwreckedcrew.substack.com (@shipwreckedcrew) September 20, 2022
UPDATE –
Eleven states, led by Texas, have filed an Amicus Brief supporting Trump:
In this sui generis case, however, there is reason to doubt that this presumption of regularity should be afforded to the decisions of the Biden Administration in connection with the raid of, and seizure of documents from, the personal residence of President Trump. The district court recognized as much by appointing a special master to review the set of documents at issue, by refusing “to accept the Government’s conclusions” about the contents of the seized documents, and by observing that “evenhanded procedure does not demand unquestioning trust in the determinations of the Department of Justice.” A6-7, 12. This approach was particularly necessary here given the “undeniably unprecedented nature of the search of a former President’s residence” coupled with the “swirling allegations of bias and media leaks.” A24, 32; see also A23 n.11 (noting the Government’s counsel’s “candid[] acknowledge[ment] [of] the unfortunate existence of leaks to the press”). But in addition to these compelling circumstances, the Administration’s questionable conduct in the litigation and policy-making spheres—which has provoked the ire of several federal judges— further supports affirming the district court’s sound decision to proceed with caution via a special master.
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Comments
Here is another reason this is all theater for the absurd on behalf of the DOJ and more proof Trump is playing them.
In terms of a document bearing a classification mark.. (regardless of document and issuing agency or even if the number is a generic bates type)
First, ALL documents ( bearing classifications) are entered into a registry and tracked.
Second, all Trump has is a COPY ( that’s right, the initiating agency always keeps the “original” for its own retention policy and authentication for other “doctored” documents should they pop up)
So, the USG already has the “document” ( and never “not had”); They know EXACTLY what Trump took ( and knew from the day the documents left)
So, there’s NOTHING FOR THEM TO REVIEW ( and never was) (in terms of any confidential material)
ALL of this SW Kabuki ( and the other subpoenas) is for ONE REASON.
It was the “legal crowbar” to get in and see WHAT ELSE Trump ( and associates) has in the way of evidence for various issues.
We all see them acting scared- now you all know exactly what they are scared of.
(Pure conjecture on my part here) One might also wonder if Document XYZ that Trump took (and declassified in the process) might not be able to be *Re*-classified without all copies accounted for. Say for hypothetical example the US had a detailed list of just when and how much uranium Iran had refined to what percent from the Clinton administration until he left office. As long as Trump has a copy of that, the current admin cannot come out and claim Iran was abiding by all the agreements made pre-Trump and send them a couple billion dollars in non-sequential bills again without facing the possibility of being humiliated yet again. Hence the frantic security review to see if the theoretical document XYZ had been copied after being shipped to MAL Like I said, just a theory.
Or, again, conjecture. That the copies of documents that the DOJ so desperately wants to keep disclosed perfidy and malfeasance on the part of the DOJ and FBI in regards to their role in RussiaGate/Crossfire Hurricane, and their primary purpose for ignoring his requests to declassify these documents, before he formally ordered them such, was to prevent embarrassment and potential criminal and civil liability for said perfidy and malfeasance.
@Georg
You raise a great point and I see the media (and DOJ) deliberately lying about it to create and promote a false narrative as a truth.
You>>>Document XYZ that Trump took (and declassified in the process) might not be able to be *Re*-classified without all copies accounted for.
Here’s how the process works ( and the way the DOJ is lying should become immediately obvious)
“Document” XYZ is either “created” or “procured’ and given a number and classification
Document XYZ has “H” number of authorized copies (be it Trump or anyone with clearance and justification)- this creates a “parent-child” trail for document accountability. (non authorized copies are a separate crime and specification but an illegally copied document would also be classified as the INFORMATION is classified- not the paper its on)
So Trump ( or anyone with designated authority in a given agency) has the authority to declassify a DOCUMENT ( the copy) or the SERIES ( from the parent down)
This is the basis of the “lie” that the document are “still classified” because MOST LIKELY the “series” still is. ( which means every other copy is STILL CLASSIFIED)
Trump declassified HIS copy. (He can do that)
This is all wordplay
You’re wrong on this one, taurus.
The information is classified and de-classified.
You don’t declassify a single document, you must declassify the information in the document.
(I have held a security clearance for 35+ years, and have worked with highly classified information in that time. I have to do the training on making documents – original and derived – and copying them every single year.)
No, I’m not wrong and I also point out the “information” as opposed to the paper but I see where I overtyped my thoughts and should have written it better because i was thinking on the other end of it but it was good you pointed it out.
I did mention this but probably not clearly enough (poor choice of words on my part) since you caught it and going back I see where I erred.
It would be better stated:
The President or Agency head with authority can decide and classify “information” or the carrier and or method of dissemination. ( some is “born” classified- some is determined)
Trump and the agency classifying authority (Like Hillary was as SOS or any other head delegated this unique ability)
Trump is in the sole unique position ( and the VP I think as a subordinate) can declassify “in any fashion” and in “any way’ due to absolute plenary power vested in his position.
Nobody else (agency or office) can do this.
So Trump (in capacity of President and CIC) CAN “declassify” information and/or documentation ( as he sees fit) without affecting anything else. Nobody else can.
Just like Biden could change it back but NOT that which was “removed” by an equal authority. ( that’s not written anywhere specifically but “trumped” by Constitutional provisions about not creating an abso defacto situation)
Good catch GW
@Taurus – GW Bush explicitly designated his VP, Dick Cheney, a primary classification/declassification authority. That would suggest that the VP is not usually included in the chain of higher and higher declassification authorities.
“Constitutional provisions about not creating an abso defacto situation”
I’m going to assume you mean ex post facto, as that expression appears nowhere else in the universe.
Continuing your thoughts – since all Trump would have had were copies, then identifying the documents would have been trivial, and likely done almost immediately. This means that the government really doesn’t have a viable excuse for their motion, based on their claim that they need the documents for their investigation. They don’t. At worst they could make the (weak) argument that Trump’s possession of the documents was illegal. And if they did, they could get Trump’s copies from the Special Master. Or just a stipulation by Trump that he had them at MAL.
NOW YOU ARE CATCHING ON.
All this “whatever” about Trump having “classified ” whatever was the RED HERRING to justify the SW to go look for “other” things.
Remember, they KNOW the CF hurricane docs he has ( and knew from the moment he requested a copy because someone had to log it)
What they want ( the TRUE target of the raid) is ANYTHING/EVERYTHING else Trump has that proves/disproves all their claims or otherwise tells the truth as to what really went down.
That’s why all these other subpoenas too.
Those of us who have clearances and have worked with this have been saying this from the beginning- what we didn’t know was: Did Trump declassify the individual document in his possession or the entire series. Now it appears just the documents he took copies of.
They do NOT “need” his COPIES ( they have their own)- this is just trying to get them “under seal” so they cant be used elsewhere,
Like I said, a big RED HERRING.
There is literally, as much as i hate that word, one hard copy of some information.
In some cases yes and its compartmentalized too. ( matter of fact almost all documents start that way)
Then the question becomes “when and where are authorized copies made and how are they issued?
That authority exists in every agency and with POTUS. Whether its used or not depends on the individual situation. Its not a question of a document “not being able or allowed to be copied” because ALL CAN BE ( with approval of proper authority)
In context with this situation, it changes absolutely nothing because as POTUS, he simply says “I want a copy of that” and its done. ( his unique level allows for that)
It changes nothing.
To add,
Remember what Sherlock said:
“When you remove the impossible, whatever remains is the truth”
It literally is IMPOSSIBLE for Trump or any single human to get “all copies” of any classified document and just “remove” them.
So, you know that’s not it- once people get the media droning out of their ears and look at this with critical thinking, the rest is obvious
This is patently false.
There are unique classified documents.
Yes there are “unique” ones and yes Trump theoretically” could remove them but not without a highly visual document train and we know he didn’t because if he did it would be published all over creation.
Now take that 35 years of expertise you claim and put it in proper context with the subject.
You know exactly what I said and meant and you know its correct in context.
Now, in “context” point out the “patently false” part and I’ll correct you.
You already admitted it – there are unique documents that are classified. You had stated it as if there are none. And it isn’t impossible for someone to remove all copies of some set of classified information. Even where there are copies, they sometimes reside all in a single location, and someone could walk out with them. (Yes, we have processes and procedures to counter that, but they don’t always work.)
I just want everyone here to understand that you’re making a couple of absolute statements that aren’t true. They are true in the main but are not absolutes.
I see a lot of misconceptions about classified material floating around, and wanted to make sure what you were saying was the most correct it can be. (Plenty of what you said here is good info.)
(What is said about documents here only applies to physical documents, not electronic ones. Electronic ones can be more easily copied to physical format, though it is harder nowadays to copy them electronically.)
One thing to note – the more classified a document is, and the less it has to do with process (decision-making, meetings, briefings, etc.) the more likely it is to have every copy in one place, or to have only a unique copy. Classified documents about events (say, an exercise) tend to be a lower classification (because somewhen most of the info will be known publicly) and they get distributed a lot. Pictures of that secret Russkie missile installation taken with the super-secret super-hi-tech invisible stealth drone with a 1,000 mile range? Yeah, there’s one copy of them in a VERY safe place, and you go through multiple levels of security to get to where you can even hear their existence acknowledged, much less see the things.
Trump’s stuff about Russiagate…. Some of it is very likely overclassified (which is against the rules) and a bunch of it is likely classified at a level someone thought would protect it, but is really kinda wide-open in terms of access.
Fair enough and you were right to do so and in my wording I created a situation by accident regarding the very information I was intending to correct and avoid.
I do try to be accurate. I stand corrected!
I will not go into it but people may know what is in the documents but there may be only one copy.
That’s almost always the case and obvious but that’s not the point as far as this situation is unfolding
DOJ delende est.
National Review Headline: Trump Concedes Possible Indictment
Legal Insurrection Headline: Trump To 11th Circuit: Deny Feds’ Motion for Partial Stay, District Court Acted Properly
Yeesh
Go read the actual letter. The NR is “embellishing” to the point of being a deliberate lie.
Oh. I don’t disagree. TDS took over NRO good and hard.
What is excruciatingly frustrating to me is the fact that the DOJ, FBI, and various compromised Judges don’t give hoot about the Law, just running rings around it until the end of time. They’re interested in their “end” and to hell with whatever means it takes to get there. They are the definition of Lawless.
Downstream from the raid …. FBI/DOJ now has all of Trump’s records – if in the future a copy surfaces – do they charge Trump with unauthorized disclosure / distribution of classified material? Does it prevent Trump from using the documents in any future law suit or investigation?
No and no
I would say Yes and No.
Not because of how it should be, but what they have turned it into.
I certainly cant say they wont charge trump ( we all know they are dying to)
I just cant see them bring a charge ( making trump basically a martyr) and then r risk losing in court.
OTOH, they really could be that desperate too.
Its a coin flip.
So much of what the DOJ/FBI has done seems like trap-setting … just wondering if they might be of the mindset having confiscated all his records, if he then produces a copy or excerpt, if they could charge him with possession / distribution of same … they just strike me as that slimy and desperate …
Right now (Tuesday) the special master discussion seems to be going (badly paraphrased):
DOJ: “We have in this sealed box a classified document which has never been declassified and therefore is ours to do with as we wish.”
Judge: “The defense?”
Defense: “We would like to see the document so we can say why it is not classified.”
DOJ: “Nope. It’s classified. You can see the box. That’s it.”
It would appear Grey Man Garland & Crew are finding out what the Twitter Woke Mob are. Tying into a billionaire is a far different thing than one of us smellies who cant fight back
I’m waiting on the “above Top Secret” media crap I’m sure is about to come
If I heard this correctly, Judge Dearie just admonished the DOJ for challenging Team Trump’s insisting that Trump declassified the contested documents without presenting any evidence. IOW, put up or shut up. DOJ’s case is about to cave?
Sorry, I meant to say the District Court judge, not Judge Dearie.
Dearie said the opposite on Tuesday when he went off the rails within minutes. That isn’t his charge from Judge Cannon though, yet he seems to have forgotten that he isn’t acting as a judge in a court of law here but as a special master.
Now I think we know why the DoJ quickly accepted him. He was a former FISA Court judge and all they do is accept at face value whatever the government sets in front of them as with the FISA warrants to spy on Trump and his campaign have proven.
What is concerning to me is that, so far as I’ve read, (and I may have missed something in the “back and forth”), Trump’s attorneys (and the former President himself) had never issued a formal statement (pleading or document or formal offer of proof) that President Trump did indeed declassify the documents. They seem to have fallen back on the position that DoJ has not proven that he didn’t do so.
In such case, isn’t the presence of the markings themselves prima facie evidence (coupled with the presumption of administrative regularity) that they were classified, such that the burden would shift to Trump to present evidence (which could be a formal pleading) that the President did declassify the formerly classified document(s)?
In some cases where something like the presumption of innocence exists, you can beat something with nothing (else), but this doesn’t seem to be one of those cases.
Trump et al have in out of court statements claimed the documents were declassified, so why not formally state the same in a pleading?
This whole affair is looking more and more like a “Weissman Special” where prosecutors redefine legal behavior that they don’t like into a hyper-technical “violation” of broad statutes like obstruction of justice. It is what the DOJ did in the Arthur Anderson case, where they charged obstruction because the company discarded records that were not yet requested or ordered retained. It destroyed a major accounting firm and was later unanimously overturned by SCOTUS.
In this case, the materials in question have never actually been out of government custody, as they were under the care of the Office of The Former President, which is a federal government entity staffed by people with security clearances and drawing paychecks from the Treasury, and the facility guarded by the Secret Service.
And as I understand it, the ones Trump had are mere copies of documents the originals of which are still in the possession and control of the US Government.
Ringmaster Trump is keeping attention on subtleties encrusting the rabble-rouser’s emotional appeal: ZOMG, classified things in Melania’s underwear drawer.
Breakdowns above about classification and related are bang-on. I’ve found, in trying to write some info-handling context myself, that parsing out one useful bite-sized chunk is hard. You want the whole meal to really “get it.”
I, myself, am waiting for the claim that obviously Der Orange Führer was in collusion with the Russians because ZOMG, he married a Slavic immigrant model.
The Fang-banger is not yet available for comment on this one. Neither is the passenger in the Driving Miss Dianne saga.
All this is based on the Presidential Records Act, and the PRA contains no criminal enforcement provision.
So the DoJ is attempting to use other statutes in order to make a criminal case where no criminal enforcement of the RA exists. That includes such bullshit as obstruction when the PRA contains no such clause.
‘no criminal enforcement of the PRA exists’.