Bad day part 2
A federal appeals court on Wednesday freed the Justice Department to resume using documents marked as classified that were seized from former President Donald J. Trump, blocking for now a lower court’s order that had strictly limited the investigation into Mr. Trump’s handling of government materials.
In a strongly worded 29-page decision, the United States Court of Appeals for the 11th Circuit set aside key parts of an order by a Florida federal judge that has kept the department from using about 100 files with classification markings in its inquiry into whether Mr. Trump illegally retained national defense documents and obstructed repeated efforts to recover them.
By a Florida federal judge who was made a federal judge by Trump despite her striking lack of the usual experience or expertise, and who issued a ruling so bad that lawyers everywhere ran out of words to say how bad it was.
The appeals court also agreed with the Justice Department that Mr. Trump’s lawyers — and an independent arbiter recently appointed to review the seized materials — need not look at the classified documents that the F.B.I. carted away from Mr. Trump’s estate, Mar-a-Lago, on Aug. 8.
…
The decision by the Atlanta-based court was a repudiation of the decision by Judge Aileen M. Cannon, whom Mr. Trump appointed to the Federal District Court for the Southern District of Florida, to broadly intervene in the Justice Department’s investigation. The appellate ruling will permit the arbiter, known as a special master, to review most of the more than 11,000 files seized from Mar-a-Lago, but allow prosecutors unfettered access to the smaller batch of classified records.
Two of the three judges who issued the ruling are Trump appointees.
The dispute over the files traces back to Judge Cannon’s decision to install a special master to filter the documents seized in the search of Mar-a-Lago for any that were potentially privileged. She also barred criminal investigators from using the materials until the review was completed, and rejected the Justice Department’s request to exempt the 100 or so records marked as classified from that process.
In short she acted like a Trump plant, or robot.
[I]n an interview that aired late Wednesday, Mr. Trump made the extraordinary claim — not advanced by his own lawyers or supported by prior practice or legal precedent — that he had the right as president to declassify documents by wordlessly willing it to be so.
He did. He thinks it’s a kind of magic. He really is that stupid.
“You can declassify just by saying ‘it’s declassified,’ even by thinking about it,” Mr. Trump told Sean Hannity on Fox News.
…
Mr. Trump “has not even attempted to show that he has a need to know the information contained in the classified documents,” the appeals court wrote. “Nor has he established that the current administration has waived that requirement for these documents. And even if he had, that, in and of itself, would not explain why plaintiff has an individual interest in the classified documents.”
The talking heads leaned heavily on that need to know point. Trump has zero need to know anything about those documents because he is just another fella now. He seems to think he’s a kind of shadow president in perpetuity, but he’s not, he’s a private citizen, and a very corrupt law-breaking in deep shit one at that.
Mr. Trump has claimed publicly that he declassified everything he took from the Oval Office, but no credible evidence has emerged to support that claim and his representatives have stopped short of repeating it in court, where it is a crime to lie.
If you’re a lawyer for Trump: be careful. Be very very careful.
And as has been noted here before (at least once by me) is that he didn’t have any right to take the documents that were not classified. They are government property. All this focus on declassifying documents seems to skirt that issue, and of course, that gives the Trump people something to hang on to. “Well, they weren’t classified.” No difference in terms of stealing government property. I do wonder if having the classified documents could make him open to charges of espionage or treason, where the unclassified ones wouldn’t.
I think the declassification issue is being raised a lot because it’s important in a political/public relations sense. If Trump was keeping possession of some boring unclassified documents, then even many non-MAGA folks would regard it as a technical crime at best, the equivalent of hanging on to some office supplies from your former employer.
Screechy, I might, too, if it wasn’t for “lock her up!” That sort of changes things. Total hypocrisy, especially since Hillary didn’t keep classified government documents when she left her position.
Oh yeah, and not just hypocrisy, but also there’s the intent angle. One of the reasons the DOJ cited for not prosecuting Hillary was that she and her team cooperated with the investigation. If Trump and his team had said, upon first being contacted by NARA, “oh, sorry, we didn’t know these were supposed to go to you, we’ll give them all back,” or even “we disagree that we can’t keep copies, but we’ll turn them over and submit a request because we need them for his memoirs,” then I think this would be a minor story at best. But Trump withheld information and documents and lied about it, and repeatedly doubled down when told that he was violating the law.
Incidentally, the Special Master has ordered Trump to submit a declaration by September 30 stating whether he contends that any of the items on the FBI’s inventory were not taken from Mar-A-Lago (i.e. if the FBI planted evidence), or if the descriptions are inaccurate, or if anything was taken but is missing from the inventory.
It’s put up or shut up time.
Don’t be surprised if Trump dismisses his civil case rather than have to commit himself on factual issues.
Cannon has now stricken the stayed portions of her order, making the stay moot and probably making appeals of the stay (or using the 11C order) impossible.
Ironically, the stay may have helped Trump dodge one bullet — if the 11th Circuit hadn’t taken the classified documents off the Special Master’s plate, there’s a good chance that the SM would have required Trump to include in that declaration a statement about whether he contended any of the documents were declassified and why.
Don’t get me wrong, I’m sure DOJ is still happy with the outcome, especially lifting the injunction against pursuing the investigation.