Litman: Whew – 11th Circuit hit back at Trump’s specious claim over Mar-a-Lago documents

The United States Court of Appeals for the 11th Circuit on Wednesday evening overturned U.S. District Court Judge Aileen Cannon’s refusal to grant the Justice Department a stay in the Mar-a-Lago documents case (Cannon’s second scandalous work related to stolen House records White). The appeals court ruling felt like waking up from a bad dream.

Many commentators, myself included, had pointed out that the legal and logical flaws in Cannon’s decisions were not subtle or even matters of judicial philosophy. Rather, they were errors motivated by ridiculously poor and perhaps partisan judicial reasoning.

They have incorporated such fundamental missteps as ignoring the need for evidence and evidence, and they have repeatedly encroached on the executive’s territory on issues such as whether the damage assessment by Trump’s handling of classified documents required FBI involvement.

The 11th Circuit’s reprimand was final. In a unanimous, “per curiam,” opinion of two Trump-appointed judges and one Obama-appointed judge, the decision strayed from Cannon’s bottom line and nearly all of his shoddy reasoning. “Per curiam” underlines the judgment; this means that the court spoke with one voice, rather than two judges joining in the written opinion of the third.

And given how quickly the 11th Circuit judges acted, it’s a safe bet the opinion was being drafted even as the parties’ paperwork arrived. This suggests that the appeal judges considered that the case was not closed and that they recognized an urgency. need to end the damage to national security and the Justice Department’s criminal investigation that Cannon had inflicted.

On the central question of whether Trump has a possessory interest in the classified documents at issue, the court could not have been more specific: “We cannot discern why [Trump] would have an individual interest or need for one of the 100 documents with classification marks.

That sounds narrow, but — ouch — as an appeals judge, it’s essentially a way of saying Cannon was crazy to deny the department’s request to suspend its decision that documents marked classified should be barred from investigation.

In an equally pragmatic tone, the court mowed down guess after guess that had formed the crumbling scaffolding of Cannon’s thinking. Of course, the United States suffers prejudice if it cannot conduct a criminal investigation and national intelligence review of classified documents. Clearly, Trump did not even attempt to demonstrate the need for the information contained in the documents. Obviously, there is no particular injury to Trump if he is the subject of a criminal investigation.

That last point was particularly important as he chastised Cannon — politely, again — for his obnoxious decision that Trump perhaps shouldn’t be prosecuted because he’s a former president.

As for Trump’s half-hearted efforts to play it both ways on the declassification issue — suggesting he declassified documents but providing no evidence — the 11th Circuit went even further in torpedoing him than Judge Raymond Dearie, the special master who was named in the case at Cannon’s request, had done.

Dearie told Trump’s lawyers they should either put up or shut up on the declassification evidence. But the 11th Circuit panel took the issue off the table entirely. He felt that Trump’s declassification of documents was a “red herring” because declassification would not change the contents of the documents or make them personal. Content, in other words, is what determines whether a document belongs to Trump or the government.

Presumably, the appeals court’s decision greatly simplifies Dearie’s special main task. He will be able to quickly filter what is covered by professional secrecy among the documents. As for the balance, including which documents might be covered by executive privilege, the 11th Circuit appears to require specific evidence of Trump’s personal interest in the content to even put documents in dispute. In any event, the secondary spectacle of Cannon’s special facility should not hamper the vigorous pursuit of the criminal investigation into the Mar-a-Lago documents.

In total, the 11th Homer signaled a huge reduction, if not the elimination of Cannon’s misdeeds.

Trump tried to push his declassification defense again in a Wednesday night interview with Fox News’ Sean Hannity. “There doesn’t have to be a process,” he said. “If you’re the president…you can declassify…even thinking about it.” The circuit court ruling blows that fantasy out of the water.

Cannon suffered a humiliating reprimand in his first major case. The obvious lesson for her is that she needs strong legislation backed by real evidence for the former president to move forward. In light of the 11th Circuit’s instructions, by far the worst of what she did will be fixed, and the system dodged a cannonball.

@HarryLitman



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