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Monday, December 09, 2019

'The Law Is Clear': GOP Appeals Judges Void Mar-a-Lago Special Master

@CynicalBrandon

Donald Trump and his appointee, US District Judge Aileen Cannon, right

A three-judge panel on a federal appeals court on Thursday struck down the special master that was hired to oversee the United States Department of Justice's investigation into the trove of top-secret documents that former President Donald Trump took from the White House before leaving office.

In September, Judge Aileen Cannon of the Southern District of Florida – whom Trump appointed to the bench in 2020 – tapped Senior Judge Raymond Dearie of the District Court for the Eastern District of New York to determine the classification status of tens of thousands of pages that Trump had no legal right, or authority, to remove from the White House.

The materials, which contained highly classified information pertaining to a foreign power's nuclear capabilities, were seized by the Federal Bureau of Investigation during a search warrant execution at Trump's Palm Beach, Florida Mar-a-Lago estate on August 8.

Trump, whom the Justice Department suspects violated the Espionage Act, has vigorously fought the FBI's actions as well as the warrant that it lawfully obtained, arguing that the documents were his. But Trump also maintained that he declassified them through telepathy. His attorneys, meanwhile, have failed in numerous attempts to prove their case that Trump, as an ex-commander in chief, is shielded by immunity and executive privilege.

The 11th Circuit Court of Appeals flatly rejected that claim.

"In considering these arguments, we are faced with a choice: apply our usual test; drastically expand the availability of equitable jurisdiction for every subject of a search warrant; or carve out an unprecedented exception in our law for former presidents,” the court said in its opinion as reported by The Washington Post. “We choose the first option. So the case must be dismissed.”

The Post highlighted that all three jurists were placed on the appeals bench by Republicans.

“Judge William H. Pryor, the former attorney general of Alabama, who was nominated to the bench by President George W. Bush,” the paper recalled. “The other two judges on the panel, Andrew L. Brasher and Britt C. Grant, are Trump nominees. They also were on the three-judge panel that ruled against Trump earlier this fall on limited aspects of the special master appointment, restoring access for criminal investigators to the 103 documents with classified markings."

Yet their ruling was nonetheless unambiguous.

"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," the judges said, per Reuters. "Nor can we write a rule that allows only former presidents to do so."

This is a devastating blow to Trump. As former federal prosecutor Mitchell Epner pointed out in The Daily Beast on Monday, "if the 11th Circuit rules against Trump, I would expect an emergency appeal to the Supreme Court, which would be quickly denied. As soon as that happens, I expect that newly appointed Special Counsel Jack Smith and his team will indict former President Trump on multiple counts."

Epner explained that Trump's legal woes are rapidly accumulating.

"Although Trump has tried to keep this case in the Southern District of Florida (where Republicans recently routed Democrats in statewide elections), I expect that the indictment would be issued from the District Court for the District of Columbia," he wrote. "The crimes related to the removal and retention of national security documents in violation of the Espionage Act were arguably committed when Trump removed them from the White House, making DC a possible venue for an indictment on those charges."

Trump, Epner noted, "would almost certainly fear a trial in front of a Washington, D.C., jury even more than he would fear a trial in front of a South Florida jury. Trump received only 5 percent of the vote in the District in 2020, by far his lowest total anywhere. By contrast, he won Florida in 2020."

Reprinted with permission from AlterNet

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