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Monday, December 09, 2019

Donald Trump at Mar-a-Lago

On Friday, the Department of Justice filed what can only be described as a blockbuster motion with the 11th Circuit Court of Appeals in Atlanta. It’s got a rather innocuous title, “Motion to Expedite Appeal,” but it’s filled with legal artillery aimed at one man, Donald Trump, and one woman, Judge Aileen Cannon.

In the first paragraph in support of the motion, the DOJ comes right out and states an obvious point I don’t think they’ve put this bluntly before: “On August 8, 2022, the government executed a lawfully issued search warrant seeking records that may have been unlawfully retained at a residence belonging to the plaintiff – the former President of the United States – after his tenure in office, including government records bearing classification markings.”

The only punch they pulled in that sentence was the word “may” in modifying the word “unlawfully,” which they felt necessary given the fact that determining whether someone has acted unlawfully must be determined by trial.

The DOJ then strongly implies that when the matters before the 11th Circuit are complete, they plan to charge the former president with unlawfully retaining government records that do not belong to him and very possibly making them easily available to persons without authorization by the current administration to see or handle them.

The DOJ filing treads roughly over Judge Aileen Cannon, whose previous order, enjoining the government from using 100 classified documents kept by Trump, the Circuit Court has already brutally reversed. The DOJ told the Circuit Court that Cannon had prevented the government from using the classified documents in its criminal investigation of Trump and had severely impaired the national security assessment of damage that may have been caused by Trump’s unsecure handling of the top secret and secret documents.

Now the DOJ wants the 11th Circuit to order an expedited schedule for its appeal, overturning yet another aspect of Cannon’s order limiting the government’s access to the non-classified documents Trump “may” have unlawfully removed from the White House to his hotel/club/residence at Mar-a-Lago. The 11th Circuit has already found that Cannon had “abused” her discretion in its order because the DOJ had not shown the necessary “callous disregard” of the plaintiff’s constitutional rights in carrying out its search. Cannon overstepped her authority with respect to the 100 classified documents, and now the DOJ is asking the 11th Circuit to see things the same way with regard to the rest of the unclassified documents Trump was holding in cardboard boxes in the basement of Mar-a-Lago and in his office, including in a drawer in his personal desk.

“The government is … unable to examine records that were commingled with materials bearing classification markings, including records that may shed light on, for example, how the materials bearing classification markings were transferred to Plaintiff’s residence, how they were stored, and who may have accessed them,” the DOJ wrote in its application for an expedited appeal. Cannon’s order last week extended the amount of time Trump’s legal team and the special master are allowed to review the unclassified documents for potential executive or attorney-client privilege through mid-December and even longer. The DOJ is asking the 11th Circuit to once again overrule Cannon and impose a mid-December deadline for submitting written briefs and schedule oral arguments soon after.

“Absent such resolution by this Court, the special master proceedings could result in prolonged litigation, including through seriatim appeals to the district court from reports and recommendations and other rulings issued by the special master,” the DOJ wrote, clearly indicating to the court that Cannon’s order and Trump’s lawyers are simply trying to run out the clock with delay after delay by blocking the DOJ from accessing all the documents it needs for its criminal investigation of Trump.

The DOJ’s motion also took special note of the fact that Cannon has overruled decisions made by Judge Raymond Dearie, the special master she appointed at Trump’s request. Every one of her rulings about the special master has had the effect of delaying the review of the seized documents and interfering with both the government’s ability to investigate Trump, as well as the intelligence community’s assessment of possible damage to the national security which may have been caused by the improper storage of both classified and unclassified documents at Mar-a-Lago and the fact that unauthorized people had access to them.

Down near the end of its motion, the DOJ dives more fully into its intentions with the investigation of Trump, and where that investigation might end up taking them. “The records not marked classified may also constitute evidence of potential violations of 18 U.S. Code 1519 (obstruction) and 18 U.S. Code 2071 (concealment or removal of government records). In short, an expedited schedule for briefing and argument may enable the government, if it is successful in this appeal, to move more quickly to resume its full investigation without restraints on its review and use of evidence seized pursuant to a lawful search warrant.”

See? There it is again: the search warrant was “lawful,” while Trump’s “concealment and removal of government records” “may” be “unlawful.” That’s the DOJ leaning pretty hard on the 11th Circuit to exercise its jurisdiction and authority and slap down Judge Cannon in the same way they slapped her down before. The big thing in the 11th Circuit’s previous ruling against Cannon was her assumption of judicial jurisdiction to which she was not entitled. She ignored a Supreme Court precedent they probably teach in First Year Law, and the court was not happy with her.

If the 11th Circuit treats this DOJ motion like it treated the previous one, we’ll be hearing more about this as the week goes on.

Watch this space. I’ll be on the case.

Lucian K. Truscott IV, a graduate of West Point, has had a 50-year career as a journalist, novelist, and screenwriter. He has covered Watergate, the Stonewall riots, and wars in Lebanon, Iraq, and Afghanistan. He is also the author of five bestselling novels. You can subscribe to his daily columns at luciantruscott.substack.com and follow him on Twitter @LucianKTruscott and on Facebook at Lucian K. Truscott IV.

Reprinted with permission from Lucian Truscott Newsletter

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