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Monday, December 09, 2019

Tag: aileen cannon

Trump: I'll Have The Loser Combo Plate And A Diet Coke, Please

What follows is my umpteenth-plus report on the Trump stolen documents case. To continue following my peregrinations through the courts covering this nonsense, please consider becoming a paid Substack subscriber and help me find my way.

This is what it sounds like when a Circuit Court of Appeals slams the door on you: “The law is clear. We cannot write a rule that allows any subject of a search warrant to block government investigations after the execution of the warrant. Nor can we write a rule that allows only former presidents to do so.”

The decision that came down on Thursday night against Donald Trump by the 11th Circuit was unanimous. Before the court’s recent decisions against him, Trump would have described the two judges on the panel he had appointed to the bench as “mine,” the same way he described as “mine” the hundreds of classified documents he had squirreled away in a dank basement of Mar-a-Lago and in a drawer of his own desk. In its 21-page decision, the 11th Circuit all but told him, no they’re not, and no we’re not.

I’ve been down the various rabbit holes the DOJ and the 11th Circuit have wandered through because a single federal judge in Florida, the execrable Eileen Cannon, took it upon herself to step out of her judicial robes and take on what is constitutionally the job of the executive branch, namely, making decisions about whether to undertake an investigation of a citizen for committing a federal crime. Cannon figured she knew better than the attorney general of the United States, whose job it is to investigate federal crimes, so she threw a series of roadblocks in front of the Department of Justice, which was attempting to determine why in God’s name Donald Trump had taken some 22,000 documents owned by the federal government to his home and office in Palm Beach, Florida, and what he did with them.

Judge Cannon put a hold on the DOJ’s use of the documents, all 22,000 of them, as evidence in its investigation, and turned them over to a special master in Brooklyn, of all places, to review the whole lot of them to see if any were subject to either attorney-client or executive privilege protections.

The DOJ quickly got the 11th Circuit to step in and remove from the special master review the hundreds of classified documents found in the possession of the former president by pointing out the obvious: They have markings on them bearing several levels of classification by the federal government which clearly labeled them as property of the government. The DOJ’s second appeal, asking that the entire process of the special master review be halted and all of the documents returned to its investigation, is the one which the 11th Circuit ruled on Thursday night. To put it mildly, it wasn’t a good night for Judge Cannon. The 11th Circuit found she lacked jurisdiction and basically said that her entire “theory of the case” was laughable on its face.

Trump has already been to the Supreme Court once, asking that they overrule the 11th Circuit’s first decision on the classified documents. The Supreme Court refused to hear that appeal with no dissents, strongly indicating that it will do the same thing again if Trump appeals the circuit court's latest decision.

It's been quite a month for the former president. “His” election-denying candidates, almost every one of them, lost their races for various offices around the land on Election Day. Later in November, Attorney General Merrick Garland appointed a former U. S. attorney, Jack Smith, as special counsel to run both investigations of Trump – one into his attempts to overturn the election of 2020 and his incitement of the attack on the Capitol, and the other into his theft and mishandling of classified documents after he left office. Smith has been serving as chief prosecutor at the International Court of Justice at the Hague in the Netherlands. The prospect of having Jack Smith look into the crimes he is alleged to have committed is not a welcome one for the former president.

And then last week, Trump decided he would invite a notorious anti-semite and apologist for Adolph Hitler over for dinner at his club in Palm Beach. His dinner guest, the rapper and former multi-billionaire Ye, brought along a friend of his, Nick Fuentes, another notorious anti-semite, Holocaust denier, and admirer of Hitler. Fuentes, you will recall, was one of those who marched around Charlottesville, Virginia back in 2017, carrying tiki torches and shouting “Jews will not replace us.”

Trump was still dealing with the blow-back from that dinner when it became known that his former chief of staff, the oily and unctuous Mark Meadows, has been ordered to testify before the special grand jury in Fulton County, Georgia, which is looking into, among other things, Trump’s phone call with Georgia Secretary of State Brad Raffensperger, when he asked the man in charge of the state’s elections to “find 11,780 votes, which is one more than we have,” so that he would be declared winner of the presidential election in Georgia. Meadows, it turns out, placed the phone call to the Georgia secretary of state, and once he got him on the line, handed the phone to his boss, Donald Trump. So, he was involved in the clearly illegal call (election tampering), he had obviously discussed it beforehand with Trump, and he doubtless has more to tell the Georgia grand jury than has come out so far.

Then “his” justices on the Supreme Court ruled that the House Ways and Means Committee can have access to a whole slew of Trump's tax returns that will show that he has never, ever paid any federal taxes.

Meanwhile, back in Washington, the grand jury now being supervised by Jack Smith has been very busy. Former Trump aide Stephen Miller testified before that grand jury this past week – the one investigating January 6 and the efforts made by Trump to overturn the election of 2020. Later in the week, a federal judge ordered two former White House lawyers, Pat Cipollone and his deputy, Patrick Philbin, to testify before the same grand jury. Cipollone and Philbin testified in September, but refused to answer some questions, citing executive privilege. Trump sued in federal court asserting executive privilege in an attempt to prevent his two lawyers from being forced to testify and answer the questions they refused last time. The legal proceedings have gone on behind closed doors with the judge overseeing the grand jury in Washington. He has previously ordered other witnesses to testify when they tried to assert executive privilege, and it appears that is the case with these two very key witnesses.

Speaking of witnesses, we are, beginning today, witness to The Whole Thing Coming Apart at the Seams for Donald Trump. Nothing has been going right for the man. He announced his candidacy for president at mid-month in November and has not done a thing as a candidate yet. No rallies. No announcements of endorsements. No big statements on World Affairs. In fact, the only major public statement he’s made was a video he taped for something called the Patriot Freedom Project, a far-right extremist group raising money for the families of indicted and convicted 1/6 insurrectionists. “People have been treated unconstitutionally, in my opinion, and very, very unfairly, and we’re going to get to the bottom of it,” Trump said in the video. “The country is going communist.”

Trump hasn’t acted like a candidate or spoken like a candidate or looked like a candidate. Oh, wait a minute. I forgot that he got on his Truth Social account one night recently and spread right-wing, white supremacist, and QAnon conspiracy theories for hours. The sole positive thing that has happened for him, if it can be called that, is having his Twitter account restored by the odious Elon Musk. That would be the social media network on which hate speech has skyrocketed since Musk took it over, according to a report in the New York Times this morning.

We have wondered for six years when something like this would happen. He’s being forced to give a deposition in E. Jean Carroll’s rape lawsuit. His closest aides are spending half their time with their own lawyers and the other half being questioned by lawyers before grand juries. A court to which he appointed two judges has ruled against him unanimously not once but twice in a case involving the search of his residence and office by the FBI at Mar-a-Lago. The search was legal, the court said. Former presidents are subject to the same laws everyone else must obey.

And Trump himself? Well, he’s out there posting hate and cozying up to Nazis and whining about being victimized as he watches the transactional sycophants in his party inch away from him not because he’s an awful person who spreads hate and tells lies and breaks the law, but because he’s a loser.

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.

Please consider subscribing to Lucian Truscott Newsletter, from which this column is reprinted with permission.

Latest Hearing On Stolen Documents Didn't Go Well For Trump's Lawyer

This is my umpteenth report on the Trump stolen documents case. To continue following my peregrinations through the courts covering this nonsense, consider becoming a paid subscriber and help me find my way.

In addition to losing at the Supreme Court on Tuesday in his appeal to keep his tax records out of the hands of Congress, Trump had a bad time at the 11th Circuit Court of Appeals, too.

Three Republican-appointed judges – two put on the bench by Trump and one by George Bush – expressed barely concealed skepticism of arguments put forth by James Trusty, the attorney for Donald Trump, who faced off against the Department of Justice in its appeal seeking to cancel the special master appointed by another Trump judge, Aileen Cannon of Florida.

The case has been dragging its way through the courts since Trump petitioned Cannon to appoint a special master to review the thousands of documents seized by the FBI last August from Trump’s residence and office at his Mar-a-Lago resort/hotel/club in Palm Beach, Florida. This is the second time the DOJ has appealed to the 11th Circuit about the matter.

In its first appeal, the DOJ sought to have 103 folders of classified documents released from the review by the special master so they could be used as evidence in its criminal investigation of the former president. The 11th Circuit granted that appeal in September. Two of the judges who heard the case today signed the decision in September – Judges Andrew L. Brasher and Britt C. Grant – in ruling unanimously against Trump. They were joined on Tuesday by the chief justice of the 11th Circuit, William H. Pryor Jr., the former attorney general of Alabama.

Trump went to court today with an argument the DOJ called “novel and erroneous” in the brief filed last week. The Trump position on the documents he removed from the White House when he left office in January of 2021 and took with him to Mar-a-Lago was that because he was president at the time when the boxes of documents were put on a truck and driven to Florida, they were ipso facto his property.

As the DOJ pointed out in its brief last week and on Tuesday during oral arguments, that argument flies in the face of the Presidential Records Act, a federal law passed by Congress after Watergate, which mandates that all documents and materials produced or used by a president while in office are the property of the government, not the individual serving as president. Perhaps realizing the ”I took them, so they’re mine” argument wasn’t holding much water, Trump’s lawyers took another slant on the case. The appointment of the special master was necessary and should be maintained, they said, because the search warrant executed in August was a “general warrant” and thus illegal.

“You didn’t establish that it was a general warrant,” Pryor told Trusty bluntly.

Judge Pryor didn’t think much of Trump’s lawyer’s arguments, and neither did the other two Trump-appointed judges, who ruled in September that Trump had failed to establish that the government had shown “callous disregard” for his constitutional rights in seeking the warrant from a federal judge and searching his home and office. The failure by the former president to prove callous disregard was “reason enough to conclude that the district court abused its discretion in exercising equitable jurisdiction here,” the 11th Circuit wrote in September.

Judge Pryor told Trump’s lawyer that he had to accept that not even Cannon had ruled that the government had shown callous disregard for Trump’s rights. “Your brief doesn’t even attempt to argue that it [callous disregard] was satisfied,” Pryor told Trusty.

Trump’s lawyers told the court that the search of Mar-a-Lago was illegal because the FBI had taken Trump’s golf shirts and a photo of Celine Dion along with the classified documents it seized in August. Pryor dismissed that argument with this: “The problem is, you know, the search warrant was for classified documents, and boxes, and other items that are intermingled with that. I don’t think it’s necessarily the fault of the government if someone has intermingled classified documents and all kinds of other personal property.”

At another point, Trump’s lawyer was cut off abruptly by Judge Grant when he called the search of Mar-a-Lago a “raid.” “Do you think a raid is the right term for the execution of a warrant?” Grant asked Trusty, who quickly apologized for using what he called “a loaded term.”

Trusty tried to argue that a search of a former president’s residence was a special case. Pryor wasn’t having that, either. “Other than the fact that this involves a former president, everything else about this … is indistinguishable,” Pryor told Trusty, referring to the search warrant. “We’ve got to be concerned about the precedent that we would create that would allow any target of offense of a federal criminal investigation to go into district court and to have a district court entertain this kind of petition…and interfere with the executive branch’s ongoing investigation,” Pryor said.

He then went even further. “If you can’t establish that it [the search] was unlawful,” Pryor said, “then what are we doing here?” Trusty replied that the former president had asked for the appointment of the special master hoping that by going through that complicated process, he could prove that the search was unlawful.

Pryor expressed amazement at the brazenness of the argument: “The end object of the search [through the records by the special master] is to establish it was an unlawful seizure?” Pryor asked Trusty. A CNN reporter who observed the arguments described the incredulity frequently expressed by the judges this way: “Pryor’s facial expressions throughout suggested exasperation with the Trump team’s arguments, as he repeatedly shook his head as Trusty attempted to answer his questions.”

Folks, it’s never a good sign when the chief judge in the court of appeals hearing your case is shaking his head in disbelief.

Stay tuned. We’ll be watching for the court’s ruling and will report on it here.

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.

Please consider subscribing to Lucian Truscott Newsletter, from which this column is reprinted with permission.

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.

Supreme Court Washes Its Hands Of Trump -- And Oh,That Stings!

The filing last week by Trump with the Supreme Court asking for a partial stay of the 11th Circuit Court of Appeals’ decision removing 100 classified documents from the purview of the Special Master was 37 pages long. The Department of Justice response this week to the Trump motion was 32 pages long.

The Supreme Court’s rejection of Trump’s motion, posted yesterday, consists of a single sentence on one page: “The application to vacate the stay entered by the United States Court of Appeals for the 11th Circuit on Sept. 21, 2022, presented to Justice Thomas and by him referred to the court is denied.”

Not one justice, including Ginni’s husband, dissented. The decision came down exactly two days after the DOJ filed its response to the Trump filing.

Trump’s motion did not ask that the classified documents be barred from the DOJ’s criminal investigation of Trump. Instead, it asked that the classified documents be returned to the Special Master to be reviewed for possible attorney-client privilege or executive privilege. This would have meant that the highly classified documents, some marked as very rare “Top Secret/Sensitive Compartmented Information,” would have been available to Trump’s lawyers and thus to Trump himself.

There has been much speculation about why Trump would want to see the classified documents, but most legal experts theorized that the entire 37-page Supreme Court motion was simply another delaying tactic which would have allowed the Trump legal team to continue to make mischief with the documents, possibly by insisting that they be included in any possible criminal trial because the government wouldn’t want to introduce such sensitive secrets as evidence, causing charges against to be dismissed.

The court’s order is also a blow to the reputation and career of District Court Judge Aileen Cannon, whose orders have kept Trump in the courts with his motions and filings until today when the Supreme Court stepped in and told Trump, and his pet judge, to take a walk off a short pier. That the court took only two days to issue its order amounts to an even sharper slap to Cannon and her attempts to meddle in the DOJ’s investigation of Trump.

All that’s left to do now is for Judge Raymond Dearie, the Special Master, to make his recommendations to Judge Cannon, pretty much all of which will now be moot because Trump’s lawyers, if they want to continue to practice law and earn a living in this country, will tell Trump that his avenues of appeal have now dead-ended. There is nowhere else for Trump to go. His struggles with the DOJ have just come to a dead halt.

There is the possibility, which the DOJ is said to entertain, that Trump still has some classified documents he has not turned over to the FBI. Depending on the nature of these still missing documents – one already seized by the FBI contained information about nuclear weapons – Trump may use the documents in an attempt to graymail his way out of being indicted. This seems unlikely however, because nearly anything he could threaten to do with the documents would subject him to even more felony charges of mishandling national defense information or obstruction of justice.

Trump, who is famously blatant when he cheats at his favorite game, golf, has just met an opponent who won’t put up with his shenanigans: Merrick Garland. The Attorney General of the United States just scored a hole in one page with the Supreme Court.

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

Justice Department Move To 'Expedite' Appeal Is A Prosecution Memo

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

As If: Trump's Very Own Federal Judge Issues Another Brown-Nosing Order

With Judge Aileen Cannon, who at Trump’s behest issued the order for a special master to review all the documents he removed from the White House for attorney-client or executive privilege, the words “as if” occur as never before.

As if she hadn’t made enough reversible errors in her previous orders to the Department of Justice and the special master…

As if she hadn’t exposed herself to enough ridicule by legal scholars, former prosecutors and even former judges…

As if she hadn’t already had her wrist slapped sufficiently by the 11th Circuit Court of Appeals when they overturned her ban of the DOJ using 100 classified folders in their criminal investigation of Donald Trump…

As if her order allowing Trump’s lawyers to see the classified documents wasn’t stupid enough on its face…

As if we thought things with Cannon couldn’t get any worse…

Today she issued yet another order taking the pressure off Trump and allowing him more time to run-out the clock with the special master’s review of the government’s documents he took with him to Mar a Lago. Cannon lifted Judge Raymond Dearie’s order that Trump certify in a sworn document that the DOJ’s inventory of documents and items seized from Mar a Lago is accurate and does not include anything Trump did not from the White House – i.e., the evidence Trump has consistently accused the FBI of “planting” during the August 8 search of Mar a Lago.

This means she required the DOJ to provide a revised search inventory of the seized items for no reason other than to make them go through the motions. It was Dearie who issued the requirement that Trump “put up or shut up” on his claim about the “planted evidence.”

As if that wasn’t enough, Cannon pushed back her November 30 deadline for Trump’s team to claim privilege over the 11,000 documents and other materials seized by the FBI, or assert Trump’s ownership over them. This means that any news coming out of the special master’s review of the documents Trump – shall we say, lifted – from the White House will come more than a month after the midterm elections.

As if that wasn’t enough, she also lifted her order to Dearie to make interim reports and recommendations to her as the review of the documents progressed. This would have doubtlessly caused a stream of negative news for Trump as the special master reported his interim findings. She is allowing Trump to wait until the final deadline of December 16 before he asserts any privilege or claims any ownership on documents, rather than making a set of rolling claims as his lawyers go through the process.

Cannon did all of this in a response to a letter from Trump’s lawyers complaining that Dearie’s “management plan exceeds the grant of authority from the district court on this issue,” specifically with regard to certifying the accuracy of the DOJ’s revised search inventory. They also claimed it would take them longer than they previously thought to review all the documents for privilege, so would the good judge please give them some extra time?

Of course she would! She didn’t need to be told what to do by Trump’s lawyers, although their letter did give her some cover. The order she issued today positively reeked of the prejudice towards Trump that was baked into her MAGAness from the start.

As if we needed any more evidence of the damage that can be done by unqualified judges appointed by Trump at the behest of the Federalist Society and Mitch McConnell…

Here she is, Judge Aileen Cannon, brown nose and all!

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

Upholding Justice Department, 11th Circuit Panel Spanks Cannon Hard

Only 48 hours after the Trump legal team filed its response to the Justice Department’s request that the 11th Circuit Court of Appeals end the restrictions imposed on the 100 folders of highly classified documents, that appeals court -- citing legal precedent after precedent after precedent -- eviscerated the order handed down by Florida District Court Judge Aileen Cannon and ruled in the government’s favor.

In a scorching decision, the panel of three judges – two appointed by Trump and one by Obama -- found that Cannon erred on nearly every point of the law and procedure. The circuit court ordered that her restriction on the DOJ’s use of the classified documents is “stayed,” or lifted, as well as her requirement that “the government…submit the classified documents to the special master for review.”

The legalese is a bit dense, but that sounds an awful lot to me like the circuit court has told the DOJ that it does not have to submit the classified documents seized from Mar a Lago to the special master for review. That part of Cannon’s order is now moot, and the special master will not have to ensure that everyone reviewing the documents has a security clearance high enough to do so.

The circuit court appeared to rely heavily on the government’s “need to know” rules about classified documents, that anyone seeking to see, or even hold onto classified documents must not only have an appropriate security clearance but must establish a “need to know” in order to have the documents. The circuit court found that Trump had “no possessory interest” in the documents because their classified markings clearly show they belong to the government.

“For our part,” the court wrote, “we cannot discern why Plaintiff would have an individual interest in or need for any of the one-hundred documents with classification markings.”

The court went on to complete its cancellation of Trump’s legal arguments by noting, “Plaintiff [Trump] has not even attempted to show that he has a need to know the information contained in the classified documents. 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 documents.”

KAPOW!

Further, the court takes apart Trump’s continued insistence that he had somehow declassified the documents at some unspecified point in the past: “Plaintiff suggests that he may have declassified these documents when he was President. But the record contains no evidence that any of these records were declassified. And before the special master, Plaintiff resisted providing any evidence that he had declassified any of these documents.”

BAM!

That’s where demanding a special master got him, and that’s where allowing his team to request Judge Raymond Dearie to serve in that capacity ended him up.

The circuit court went on to consider Trump’s argument, endorsed by Judge Cannon, that he would suffer irreparable harm due to “the threat of future prosecution and the serious, often indelible stigma associated therewith.” Disposing of that fiction, the court quoted a precedent that noted “if the mere threat of prosecution were allowed to constitute irreparable harm . . . every potential defendant could point to the same harm and invoke the equitable powers of the district court.”

BOOM!

As if all that were not enough, the Circuit Court spends about three pages enumerating all the procedures involved in the classification of documents and the rules necessary to protect them from exposure to forces hostile to the national security of the United States.

“We are not persuaded,” the court wrote, with the arguments made by Judge Cannon that a national security review of the classified documents could continue while restrictions remained on the DOJ and FBI. Endorsing the government’s argument to the contrary, the court continued, “The United States explains that there are circumstances where its national-security assessment of the classified materials is inextricably intertwined with the criminal investigation…thus, an injunction delaying (or perhaps preventing) the United States’s criminal investigation from using classified materials risks imposing real and significant harm on the United States and the public.”

THUMP!

Finally, the circuit court took on Judge Cannon’s order that the special master should review the classified documents for possible protection under executive privilege. “The United States also argues that allowing the special master and Plaintiff’s counsel to examine the classified records would separately impose irreparable harm. We agree,” the court states plainly. Pointing Cannon to a precedent whose importance she should have recognized, the court went on to say, “The Supreme Court has recognized that for reasons ‘too obvious to call for enlarged discussion, the protection of classified information must be committed to the broad discretion of the agency responsible, and this must include broad discretion to determine who may have access to it.’”

ZANG!

The whipped cream on the pie the circuit court launches into the face and reputation of Cannon is found in the final two pages of its decision and is worth quoting in full here. Analyzing whether Trump would be “substantially injured” by lifting the restrictions on the classified documents imposed by Judge Cannon, the court concludes:

First, as we have explained, Plaintiff does not have a possessory interest in the documents at issue, so he does not suffer a cognizable harm if the United States reviews documents he neither owns nor has a personal interest in.

Second, we find unpersuasive Plaintiff’s insistence that he would be harmed by a criminal investigation. “Bearing the discomfiture and cost of a prosecution for crime even by an innocent person is one of the painful obligations of citizenship.” Cobbledick v. United States, 309 U.S. 323, 325 (1940).

Third, because of the nature of the classified materials at issue here and based on the record, we have no reason to expect that the United States’s use of these records imposes the risk of disclosure to the United States of Plaintiff’s privileged information.

THWACK!

The 11th Circuit Court of Appeals punishing rejection of both Cannon’s order and Donald Trump’s legal reasoning is complete.


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

Dearie Challenges Trump Lawyers To Prove He Declassified Mar-a-Lago Documents

"You can't have your cake and eat it."

That is what Judge Raymond Dearie told Trump’s lawyers yesterday when they objected to his demand that they submit a sworn affidavit attesting to any actions Trump had taken to declassify the 100 folders of top-secret documents the government is seeking permission to use in its criminal investigation of Trump. Dearie, acting as special master, pressed Trump’s lawyers repeatedly on whether Trump had actually declassified the documents Trump removed from the White House and took with him to Mar a Lago.

The meeting, held in Dearie’s court in Brooklyn, was supposed to address the schedule he proposed for reviewing the 11,000 documents and other materials Trump removed from the White House when he left office on Jan. 20, 2021.

Instead, the session devolved into a lengthy back-and-forth between the judge and Trump’s attorneys over Trump’s repeated claims that he had declassified the secret documents seized by the FBI during its August search of his hotel/club/residence in Palm Beach, Florida.

Part of the subject of the meeting was Dearie’s plan for both sides to examine all the documents and submit their proposed labels for each one – personal, privileged, or unprivileged – by October 7. Trump’s lawyers objected to that schedule and asked for more time, possibly until the end of the month, before the documents have to be categorized.

The primary issue, raised by the government in its motion to Judge Cannon over a week ago and in its appeal of the judge’s order last Friday, is the status of the 100 folders with various classification markings that hold an unknown number of classified documents. The Department of Justice has asked that Judge Aileen Cannon’s order restricting their use by the government in its criminal investigation be lifted. Trump’s lawyers claimed to Cannon last week, and yesterday in their answer to the DOJ appeal, that the documents should not necessarily be considered classified, and neither court should accept the government’s word that they are classified.

In yesterday's filing to the appeals court, Trump’s lawyers wrote, “The government again presupposes that the documents it claims are classified are, in fact, classified and their segregation is inviolable. However, the government has not yet proven this critical fact. The president has broad authority governing classification of, and access to, classified documents.”

During the initial stages of the meeting, Dearie appeared to accept that the documents are classified, referring to the markings on them showing various levels of classification, including Secret and Top Secret/Sensitive Compartmented Information. He told Trump’s lawyers that in effect, Trump was trying to have things both ways: He is refusing to certify that he declassified the documents while asking Cannon and the Circuit Court as well as Dearie, the new special master, not to accept the DOJ’s contention that all of the documents remain classified.

Trump’s lawyers contended that having to certify that the documents were declassified would cause them to “disclose a defense to the merits of any subsequent indictment without such a requirement being evident in the District Court’s order.” Responding to that, Dearie proclaimed, “I can’t allow litigation strategy to dictate the outcome of my recommendations to Judge Cannon. What am I looking for? As far as I am concerned, that’s the end of it,” Dearie said. “What business is it of the court?” The “it” Dearie referred to is the contention of Trump’s lawyers that the classification status of the documents should remain in question.

Responding to an assertion by one of Trump’s lawyers that Dearie was “going a little beyond what Judge Cannon contemplated,” the judge replied testily, “I was taken aback by your comment that I’m going beyond what Judge Cannon instructed me to do. I think I’m doing what I’m told [by Judge Cannon].” Trump’s lawyers said the issue was not about “gamesmanship,” and told the judge, “We shouldn’t have to be in a position to have to disclose declarations and witness statements.”

It was at that point that Judge Dearie told the Trump legal team, “You can’t have your cake and eat it.” He then announced that henceforth he will operate on the assumption that the documents are classified according to their markings and proceed accordingly. Dearie’s decision raised the possibility that he will move quickly to review the classified documents and that he may recommend to Cannon that she lift her order restricting their use by the government. After all, he seemed to indicate, after both the DOJ and the Trump legal team have reviewed the documents and labeled them as private, privileged or not privileged, everyone will have seen the documents, classified and otherwise, so the issue of restricting the use of their content will be moot.

Dearie’s meeting lasted only 40 minutes, and based on his attitude about his duties as a special master and the way he dismissed the contentions of Trump’s lawyers, it may turn out to have been the longest 40 minutes of the former president’s life.

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