Posted on 09/22/2022 7:52:22 AM PDT by Red Badger
Rather than continue to fight this losing and expensive battle, Trump should pivot to the midterms and take his case to the public.
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The 11th Circuit Court of Appeals dashed former President Donald Trump’s hopes that his attorneys could review the 100 documents marked classified that the FBI seized during a raid of his Mar-a-Lago home. Wednesday’s decision by the federal appellate court came just one day after the special master indicated no such review would take place absent evidence that Trump had declassified those documents.
While Trump could still seek intervention by the Supreme Court, given the special master’s unwillingness to give Trump’s legal team access to the documents that the FBI maintains have classification markings, Trump should drop his case and pivot to the midterms — and let the public decide whether Democrats have weaponized the Department of Justice to target the former president.
Wednesday’s decision by the 11th Circuit turned the tables on Trump, who less than one week ago appeared to have scored two huge victories in his fight to have an independent special master review the documents and items seized by the FBI during an August 8, 2022 raid of his home. The first win appeared to come when Judge Aileen Cannon appointed Trump’s preferred candidate to serve as special master, Raymond Dearie.
The second victory came from Judge Cannon’s rejection of the DOJ’s request to put on hold her earlier ruling that, pending a special master’s review of the material, the government could not use the documents seized as part of its criminal investigation. The DOJ had limited its request for a stay to only those 100-some documents that the government claimed bore classification markings.
On Friday, the DOJ filed a motion to stay with the 11th Circuit Court of Appeals, asking the appellate court to stay Judge Cannon’s order, but again, only to the extent that her order barred the government from using the 100-some documents that purportedly bore classification markings for criminal investigative purposes. The DOJ also objected to providing those documents to Special Master Dearie for his review. The 11th Circuit expedited consideration of the DOJ’s motion to stay, directing Trump to respond to the motion by Tuesday at noon.
Tuesday proved significant for another reason, with Dearie, a former FISA court judge and current senior federal judge in New York, holding his first public hearing with the parties. During that hearing, the special master indicated that unless Trump presented evidence to the court that he had declassified the 100-some documents, there was no basis for Trump’s attorneys to review that material. Dearie also suggested Trump’s attorneys would not be receiving security clearance in the near term, which would also limit their ability to review the documents of concern.
The former president’s attorneys countered that “until they see the documents, Trump’s legal team was not in a position to fully disclose their defense or specifically address the declassification issue.” While acknowledging “that there was a legal strategy at play,” Judge Dearie stressed that, “if the government gives me prima facia evidence that these are classified documents, and you, for whatever reason, decide not to advance any claim of declassification, I’m left with a prima facia case of classified documents, and as far as I’m concerned, that’s the end of it.”
Following Tuesday’s hearing, Trump and his attorneys had some tough decisions to make concerning whether to present evidence of declassification to Special Master Dearie. But the 11th Circuit’s order on Wednesday removed the decision from Trump’s hands when the three-judge panel granted the DOJ’s requested stay.
Obama Judge Robin Rosenbaum and Trump appointees Britt Grant and Andrew Brasher issued the unsigned 29-page opinion for the court that concluded the government would likely succeed on its claim that Judge Cannon erred in prohibiting the United States from using the “classified records in its criminal investigation and to require the United States to submit the marked classified documents to a special master for review.” Here, the court found dispositive the fact that there was no evidence that the DOJ had displayed a callous disregard for Trump’s constitutional rights.
The 11th Circuit nonetheless added that Trump failed to show he had “an individual interest in or need for any of the one-hundred documents with classification markings.” Further, even if the documents had been declassified, Trump still hadn’t shown why he had a personal interest in the documents, the court reasoned.
In entering the stay, the federal appellate court also stressed the harm to the government the order created, relying on Alan E. Kohler Jr.’s, the assistant director of the counterintelligence division of the FBI, sworn statement that the United States’ “national-security review is inextricably intertwined with its criminal investigation.” “When matters of national security are involved, we ‘must accord substantial weight to an agency’s affidavit,’” the 11th Circuit stressed.
The 11th Circuit further found that the “public interest” favored a stay because “the documents at issue contain information ‘the unauthorized disclosure of which reasonably could be expected to cause exceptionally grave damage to the national security.’” Here, the court again relied on FBI Assistant Director Kohler’s declaration to support this finding.
In discussing the “public interest,” the 11th Circuit completely ignored the public’s interest in assuring an unbiased review of the documents — the concern that motivated Judge Cannon’s decision. Wednesday’s opinion instead accepted at face value everything the DOJ and FBI said: that the documents were marked classified and FBI Assistant Director Kohler’s various representations about the harm to national security and the need to advance the criminal investigation in tandem with the national security one.
Yes, that’s how courts work: The judges accept sworn statements as true and rely on the government’s word, absent conflicting evidence. But it remains hard to swallow that the courts place continued trust in a DOJ that previously submitted four fraudulent applications to the FISA courts to get Trump.
In response to Wednesday’s decision, Trump could seek the Supreme Court’s intervention, but even if Trump were to prevail with the high court, Special Master Dearie seems unwilling to allow the former president’s attorneys anywhere near the 100-some documents marked classified, unless Trump proves he declassified them. And even then, Dearie may adopt the 11th Circuit’s view that Trump has no interest in reviewing those documents. So even a win might not accomplish Trump’s goals.
Thus the 11th Circuit’s decision struck a severe blow to Trump and those seeking transparency. But rather than continue to fight this losing and expensive battle, Trump should pivot to the midterms and take his case to the public: Make the voters the judge of the Biden administration’s conduct and the Democrats’ relentless targeting of Trump and anyone who ever supported him.
The timing for this pivot couldn’t be better, with the New York attorney general filing a civil lawsuit against Trump and three of his children on Wednesday, with news breaking that the Jan. 6 Committee plans to question Ginni Thomas, and with a class-action lawsuit filed against Florida Gov. Ron DeSantis over his role in transporting illegal immigrants to Martha’s Vineyard. The recent demand by Republican senators that Attorney General Merrick Garland provide special counsel protection for the U.S. attorney investigating Hunter Biden further adds to the message of the Democrats’ weaponization of justice, by highlighting the double standard in play.
We should know soon whether Trump will continue to fight this losing battle or focus on the broader war against Democrats this November, as the special master gave Trump only until Friday to pick a vendor to handle the scanning of the 11,000 other documents not affected by the stay.
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Margot Cleveland is The Federalist's senior legal correspondent. She is also a contributor to National Review Online, the Washington Examiner, Aleteia, and Townhall.com, and has been published in the Wall Street Journal and USA Today. Cleveland is a lawyer and a graduate of the Notre Dame Law School, where she earned the Hoynes Prize—the law school’s highest honor. She later served for nearly 25 years as a permanent law clerk for a federal appellate judge on the Seventh Circuit Court of Appeals. Cleveland is a former full-time university faculty member and now teaches as an adjunct from time to time. As a stay-at-home homeschooling mom of a young son with cystic fibrosis, Cleveland frequently writes on cultural issues related to parenting and special-needs children. Cleveland is on Twitter at @ProfMJCleveland. The views expressed here are those of Cleveland in her private capacity. 11TH CIRCUIT COURT OF APPEALS
En banc ruling, Trump should request a move for a full court ruling.
I believe Justice Thomas oversees this circuit, so they had best be acting in conformance with the law, or he will likely step in.
One Obama judge spoils the whole panel.
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Bring it to the Supreme Court. At its heart are many vital Constitutional questions that need to be answered.
Two Trump judges were part of the decision.
Meh. The world is going to end on September 24th anyway. 😉
https://www.indy100.com/viral/qanon-september-24-the-simpsons
Etc.
There are also some fairly “legit” sources iscussing economic stuff coming down the pike at the end of September. Lots of talk about the Jewish new year, etc. as well.
The thing I like about this sort of prediction is you don’t have to wait long to find out if it’s true. 😁
“Dearie also suggested Trump’s attorneys would not be receiving security clearance in the near term, which would also limit their ability to review the documents of concern.”
They’re going to have to be given the clearances, or the feds won’t be able to make any prosecution based on any of those documents they are pinning their hopes on.
When Trump returns we need a law that if a reviewing appeals panel is reversed by a higher court, the appellate judges pay the attorney fees for the petitioner’s appeals from their salaries.
This whole fake “investigation” sure seems on-sided and stacked against the accused. In a sane legal system, it would void all charges.
For all the complaints about this legal process, the judge is not wrong here. If you go to court and want to press a legal point, you're going to have to back it up.
The "classification" question was never the real issue here. The bigger question involves documents that should be subject to Donald Trump's legal protections as a U.S. citizen (covered by lawyer-client privilege, for example).
Yeah, I’ve been hearing about “prophesies” brewing as well. Maybe we’re just not paying attention when they are fulfilled?
Per para. 2, the suggestion that Trump should try to make this the pivotal issue in the midterms.
That’s a swell idea. At least 35% of the voters hate the guy’s guts. We should take the attention off the disastrous administration and try to get those people to vote for us based on the injustice done to someone they loathe. That’s a pretty aggressive move in the direction of snatching defeat from the jaws of victory
I thought Trump declassified everything?
By the still standing executive order of his most exalted excellency Barack Obama:
“Sec. 1.7. Classification Prohibitions and Limitations.
(a) In no case shall information be classified,
continue to be maintained as classified,
or fail to be declassified in order to:
(1) conceal violations of law, inefficiency, or administrative error;
(2) prevent embarrassment to a person, organization, or agency;
(3) restrain competition; or
(4) prevent or delay the release of information that does not require protection in the interest of the national security.”
“Part 3 - Declassification and Downgrading
Sec. 3.1. Authority for Declassification.
(a) Information shall be declassified as soon as it no longer meets the standards for classification under this order.
(b) Information shall be declassified or downgraded by:
(1) the official who authorized the original classification, if that official is still serving in the same position and has original classification authority;
(2) the originator’s current successor in function, if that individual has original classification authority;
(3) a supervisory official of either the originator or his or her successor in function, if the supervisory official has original classification authority;”
“Sec. 3.2. Transferred Records.
(a) In the case of classified records transferred in conjunction with a transfer of functions, and not merely for storage purposes, the receiving agency shall be deemed to be the originating agency for purposes of this order.”
“Part 4 - Safeguarding
Sec. 4.1. General Restrictions on Access.
(a) A person may have access to classified information provided that:
(1) a favorable determination of eligibility for access has been made by an agency head or the agency head’s designee;
(2) the person has signed an approved nondisclosure agreement; and
(3) the person has a need to know the information
....
(d) Classified information may not be removed from official premises without proper authorization.
(e) Persons authorized to disseminate classified information outside the executive branch shall ensure the protection of the information in a manner equivalent to that provided within the executive branch.”
“Sec. 4.2 Distribution Controls.
(a) The head of each agency shall establish procedures in accordance with applicable law and consistent with directives issued pursuant to this order to ensure that classified information is accessible to the maximum extent possible by individuals who meet the criteria set forth in section 4.1(a) of this order.”
https://www.archives.gov/isoo/policy-documents/cnsi-eo.html
Well, I probably should not have brought it up in this thread, but...
I just heard about this stuff yesterday, so I can just see what happens between now and the end of the month. We’re already prepared as we can be. We started over a decade ago, not due to any prophesy, but simply by “recognizing the signs”, as we are instructed. And this applies not only to “his coming”, but any “big events”. It’s why the smart Jews left Germany in the mid-30’s, while they still could. The recognized the signs.
The September 24 thing was started by a member of the German Bundestag.
Then they said he was referring to February 24, the day Russia invaded Ukraine.
But why was he talking in the future tense if that were the case? February is behind us.
My only grandson turns 12 on September 24th, so yeah, it’s a special day.
You knew this was coming. This is the way the democratic party operates. They suppress all opposing evidence always! They want no opposition ever.
Let us see the Special Master’s evidence. Let us hear what he has to say so we can make up our own minds. The opposition to it just proves that the FBI and the DOJ are biased toward the democrats. They do not want it to be known that there was nothing scary found in what they took from Mar-a-Lago. It would be even more proof that it was a democratic scheme to influence the November midterm election. The evidence against the FBI and DOJ is mounting and obvious as they fight against the Special Master’s evidence.
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