Justice Department Urges Appeals Court To Overturn Cannon Orders Entirely

You remember what this whole thing is about, right? Donald J. Trump, on his second to the last day in office, took a whole truckload of official government documents, 11,000 in all, and other materials that did not belong to him, to his club/hotel/residence in Palm Springs, Florida, known as Mar-a-Lago, and refused to return them to the National Archives where under the Presidential Records Act they belong, until a threat was made to bring in the Department of Justice.

He then proceeded to dribble out the documents he had stolen in bits and chunks, a dozen boxes here, a manila envelope there, until the DOJ went to a federal judge and got a search warrant and the FBI conducted a search of Mar-a-Lago, turning up some 23 new boxes of the government’s material, including no less than 103 folders of classified documents, some marked Top Secret/Sensitive Compartmented Information, the rarest and highest classification the government can use, which the FBI found in boxes in Trump’s residence and office, and three of them were in one of the drawers of the former president’s desk.

And there things stood until Trump filed a motion with a different judge in Florida from the one who issued the search warrant, Aileen Mercedes Cannon, whom he had appointed in 2020 just before Election Day and who wasn’t confirmed until after he had lost the election. His motion asked the judge to appoint a special master to review all 11,000 documents seized by the FBI for possible attorney-client or executive privilege and to bar the DOJ from using any of the documents in its criminal investigation of Trump.

Filings and motions flew about like bats swooping through the night air after mosquitoes. I have done my diligent best to cover all these activities in various courts, including Judge Cannon’s, the 11th Circuit Court of Appeals in Atlanta, Georgia, and the Supreme Court in Washington, D.C. Trying to keep up with all the action in Trump v. U.S. has been exhausting. Earlier this week, it looked like we had reached a denouement of sorts when the Supreme Court in a 35-word order threw Trump’s emergency motion out the door without a single dissenting vote or comment.

And yet, and yet, here we are once again straining our eyes and firing our limp and expended synapses trying to understand why this Trumpian bullshit is still before the courts, and so, still beneath our tired gaze.

This time, the DOJ has filed an appeal with the 11th Circuit asking the appeals court to overturn the entirety of Judge Cannon’s original order sending the stolen Mar-a-Lago documents, all 11,000 of them, to the special master for review, and at least one of her subsequent orders doing something I cannot bring myself to look up but which had to have been as unprecedented as it was bogus on its face.

From the DOJ appeal and from my many readings of the various motions and filings, I can dimly recall that the 11th Circuit had already returned the 103 folders of classified documents to the DOJ so they could use them in the criminal investigation of Trump, as well as in the review by the Director of National Intelligence of damage to the national security which may have happened because of Trump’s mishandling of so many classified documents and documents containing national defense information. (He stored them for a time in a basement room with no lock on it in Mar a Lago, and the documents were handled by Trump aides and employees of his resort who were not cleared to even pick up much less see such sensitive national defense information.)

But Judge Cannon wasn’t finished. She most recently issued an order returning the 103 folders of classified documents to the purview of the special master, a move which made them available to Trump and his lawyers to examine at their leisure. I think the Supreme Court’s order overturned that Cannon order, but I’m too tired and sick of the whole thing to look it up and make sure.

Suffice to say, Trump’s various motions to Judge Cannon and her various orders have so muddled the situation surrounding the documents that Trump admits he took from the White House and stored in Mar-a-Lago, that the whole thing has devolved into a tangle of bogus filings by Trump and even more bogus orders by Judge Cannon, which the DOJ’s appeal to the 11th Circuit is attempting to undo.

That is why today’s filing is 57 pages long, fully 20 pages longer than its previous record of 37 pages. The DOJ is having to cover so many bogus issues raised by Cannon’s many legal errors and failures to properly follow precedent that they have outdone themselves. The DOJ takes seven pages in its “Table of Authorities” and cites no less than 61 cases and statutes it then refers to in its brief, some multiple times. Four of the cases have the name “Trump” in their titles, and one involves the warrant issued to the FBI authorizing the search of Trump’s residence at Mar-a-Lago.

The legal obfuscations by Trump are so numerous they create a low-lying legal fog that the DOJ takes three pages to drive through in its introduction; the brief then takes seven and a half pages to feel its way through the “Procedural History” of the case. Twenty-seven pages are spent in the DOJ’s “Argument,” listing all of the errors made by Cannon and the failures of Trump to meet his obligations under the law to prove various elements necessary to the issues he raised, such as failing to show the harm he would suffer if the DOJ regains full access to all of the documents which do not belong to Trump in the first place, and which Cannon ordered to be reviewed by the special master.

Paragraph titles in this lengthy section of the brief read like this:

THE DISTRICT COURT ERRED IN EXERCISING EQUITABLE JURISDICTION.

Plaintiff Failed to Establish the “Foremost” Factor Needed for the Exercise of Jurisdiction.

THE DISTRICT COURT ERRED BY ENJOINING THE GOVERNMENT FROM REVIEWING OR USING THE SEIZED RECORDS.

Plaintiff Has No Plausible Claims of Executive Privilege.

Plaintiff cannot invoke executive privilege to bar the Executive Branch’s review and use of its own records.

Any claim of executive privilege as to the records bearing classification markings would fail for additional reasons.

Plaintiff Has No Plausible Claims of Attorney-Client Privilege That Would Justify an Injunction.

Plaintiff’s Purported Factual Disputes Are Irrelevant.

Plaintiff’s suggestion that he might have declassified the seized records is irrelevant.

Plaintiff’s suggestion that he might have categorized seized records as “personal” records under the PRA only weakens his executive privilege claims.

And there is this, near the end of the DOJ brief: THE COURT SHOULD REVERSE THE DISTRICT COURT’S REQUIREMENT THAT THE GOVERNMENT SUBMIT THE RECORDS FOR A SPECIAL-MASTER REVIEW.

You can just taste the contempt dripping from the pens of the DOJ lawyers who signed the brief, can’t you?

Well, in the final sentence of the DOJ brief, you can almost hear Jay Bratt, who runs the department's counter-intelligence division, and the U.S. Attorney for the Southern District of Florida and the other signatories to the brief taking a deep breath as they choke down what they would really like to say to the “plaintiff” and the federal district court which erred so egregiously throughout the case: “For the foregoing reasons, the Court should reverse the district court’s September 5 order with instructions to dismiss this action.”

The ”instructions,” should the 11th Circuit decide to approve the DOJ’s appeal, will be issued to the person Trump appointed to carry his water and who did so with such manifest gusto: Judge Aileen Mercedes Cannon.

Whew.