Judge Aileen Cannon’s recent ruling on Mar-a-Lago received an appeal from the 11th Circuit Court of Appeals.
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Yesterday’s decision overturning Judge Aileen Cannon’s order — regarding nearly 100 classified documents seized from former President Donald Trump’s Mar-A-Lago home — is only the 11th Circuit’s She didn’t talk about Judge Cannon, she went out of her way to detail the many ways Judge Cannon got the law wrong.
In more than 25 years of working as a criminal and civil litigator (including three years as an Assistant US Attorney), I don’t believe I’ve read an appellate decision that got away from the lower court. The 11th Circuit sent a clear message to Judge Cannon and Trump: stop doing this.
Let’s take them one by one.
1. The 11th Circuit (in Footnote 4 of its ruling) clearly throws cold water on the idea that the FBI raid was designed solely to harass Trump:
The Supreme Court has recognized an exception to this general rule—where “threats to enforce statutes against appellants are not made with any expectation of valid convictions, but are instead part of a plan to employ arrest, draft and threats of conviction and colored. of the rules to harass the appellants.” Plaintiff has not made this allegation here, and we see no evidence in the record to support one.
2. The 11th Circuit overruled Judge Cannon’s finding that the prospect of criminal prosecution was an injury that Trump deserved to protect:
Second, we find the plaintiff’s insistence that he will be harmed by the investigation. “To bear the trouble and cost of prosecuting even an innocent person is one of the painful duties of citizenship.” Cobbledick v. United States, 309 US 323, 325 (1940).
“In over 25 years of practice…I don’t believe I’ve ever read an appellate decision that went further than the lower court.“
3. The 11th Circuit has essentially held that none of the relevant issues favor Trump’s injunction:
In sum, none of the Richey issues favor the application of a fair judgment in this case. Accordingly, the United States is more likely to succeed in demonstrating that the district court abused its discretion in exercising its jurisdiction over plaintiff’s motion as it pertains to confidential documents.
4. The 11th Circuit also struck down Judge Cannon’s attempt to split the minor by holding that the intelligence community could continue to conduct a national security review of the 100 classified documents, but the FBI You cannot commit any crime with those documents:
This separation is unsustainable. Through it [Assistant Director of the Counterintelligence Division of the FBI] In Kohler’s announcement, the United States adequately explained how and why its national security review was indiscriminately intertwined with its criminal investigation. When matters of national security are involved, “we must give substantial weight to the agency’s oath.”
5. The 11th Circuit also affirmed the Justice Department’s argument that allowing the special master — or Trump’s defense team — to review the 100 documents with classified information would be “irreparably harmful.” will return to the United States.
The United States also argues that allowing the special counsel and plaintiff’s counsel to inspect the classified records would impose irreparable harm on the individual. I agree. The Supreme Court recognized that for reasons “too obvious to be called a broad argument, the protection of confidential information must be committed to the broad discretion of the responsible agency, and this must include broad discretion to decide who gets it.” As a result, courts should order review of such materials only in exceptional circumstances. The record does not permit a conclusion that this is such a case.
6. Finally, the 11th Circuit has essentially held that the DOJ has already satisfied the prima facie case for prosecution under the Espionage Act (18 USC Section 793(d).
Here’s what Section 793(d) says:
“The person who has it legally [a document] relating to the national defense which the Secretary has reason to believe may be used to the detriment of the United States or to the advantage of any foreign country … the United States has the right to obtain” violates the Espionage Act and “must be imprisoned for not more than ten years” any document that is deliberately possessed.
Yesterday, the 11th round was held:
The released documents contain information that “unauthorized disclosure could reasonably be expected to cause significant harm to national security.”
The 11th Circuit almost chose that parallel language to give Judge Cannon and Trump the message: The former president has no legal defense to being charged with violating the Espionage Act. If you are charged, the charges will not be dismissed. If you are found guilty of the crime you are charged with, it will not be dismissed.
In short, as long as the documents are properly marked as classified in the first place, Trump is screwed.
In sum, my view of the 11th Circuit’s response to Judge Cannon’s order was best captured by Vincent LaGuardia Gambini in his opening statement in the 1992 film My uncle Vinny:
“Everything the guy just said is bullshit.”
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