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Federal Court Rejects Trump’s Special Master Review, Instead Trusting FBI Completely
Federalist ^
| SEPTEMBER 22, 2022
| BY: MARGOT CLEVELAND
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.
============================================================
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.
********************************************************
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
TOPICS: Constitution/Conservatism; Crime/Corruption; Front Page News; Government; Politics/Elections
KEYWORDS: 11circuit; 11thcircuitcourt; specialmaster; trump
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To: Red Badger
“Daniel Ellsberg...released the Pentagon Papers, a top-secret Pentagon study of the U.S. government decision-making in relation to the Vietnam War, to The New York Times, The Washington Post and other newspapers.
“On January 3, 1973, Ellsberg was charged under the Espionage Act of 1917 along with other charges of theft and conspiracy, carrying a total maximum sentence of 115 years. Because of governmental misconduct and illegal evidence-gathering, and the defense by Leonard Boudin and Harvard Law School professor Charles Nesson, Judge William Matthew Byrne Jr. dismissed all charges against Ellsberg on May 11, 1973.”
https://en.wikipedia.org/wiki/Daniel_Ellsberg
To: Red Badger
I still question the integrity of the search that occurred without the presence of the target on-site to verify that nothing was planted in the ‘evidence’ by the police to make their case. Trump’s attorney was forced to stand at the end of the driveway on the property line.
22
posted on
09/22/2022 8:29:07 AM PDT
by
RideForever
(Oh damn! Another dangling par ...)
To: Lower Deck
Trump said he declassified those documents and Kash Patel witnessed it. But the judge and the DOJ want actual proof that he did so, which is pretty hard to produce 18 months later. Apparently they won’t take his word or Kash Patel’s word, but they believe everything the DOJ and FBI says.
They also want him to prove that he declassified certain documents but won’t tell him which ones they’re referring to. So if he swears to it or produces evidence of declassification on a number of documents but leaves any out of the group in question, they’ll come after him for not proving he declassified those. How is he supposed to get fair treatment when practically all of DC is against him? And if they’ll do that to a billionaire like Trump, just imagine what they’ll do to you or me.
To: Lower Deck
Naive Trump Rubber Stamped All the Judges China Mitch and Grahamnesty sent him .
Two Swamp creatures Lead him around like a Clueless Country Pumpkin .
24
posted on
09/22/2022 8:31:53 AM PDT
by
ncalburt
( Gop DC Globalists are the evil )
To: Red Badger
Pro-Trump writers have encouraged us to believe that Trump had declassified the documents seized by the FBI.
From what is being reported, Trump has not made any sort of case to the courts to show that declassification happened. Not that Trump’s lawyers argued and were denied — that no case was made at all. Yet images of documents by both Trump and his Chief of Staff have been posted, which speak of declassifying a large notebook of documents.
Is Trump unable to hire competent attorneys?
Why are they incapable of presenting a case for what is the crux of this matter? Is something else in play wth this?
Or did the Trump and those around him lie about declassification?
To: Prince of Space
To: packagingguy
Yep. It is weird. Reminds me of Obama’s “57 states” comment. There ARE 57 states of Islam...
27
posted on
09/22/2022 8:37:08 AM PDT
by
cuban leaf
(My prediction: Harris is Spiro Agnew. We'll soon see who becomes Gerald Ford, and our next prez.)
To: Chewbarkah
Or possibly Trump ordered the documents declassified and the persons responsible for actually doing so never did ..................
28
posted on
09/22/2022 8:37:23 AM PDT
by
Red Badger
(Homeless veterans camp in the streets while illegal aliens are put up in hotels.....................)
To: Red Badger
It should go to the Supreme Court.
Why the FBI and DoJ don’t want the special master to see the documents is because what the documents really are might leak out. My bet is that most are related to Crossfire Hurricane, Russiagate, and FISA warrants, all of which would confirm the corruption of both the FBI and DoJ. They are just interested in covering their own a$$es, and attempting to smear, and prosecute Trump in the court of public opinion by their steady leaking to their lapdog media.
29
posted on
09/22/2022 8:41:17 AM PDT
by
euram
To: Red Badger
You know, you just might think the entire U.S. Government is conspiring against Trump.
Never seen anything like it.
This is what you get when you have a flaccid Republican Party for years, look at what the democrats have gotten away with in Clinton’s corruption, Obama an African born socialist not a freakin thing to expose them.
Trump had every government bureau including FBI,CIA, military leadership, not even to mention the communist morons in the media.
It’s all up to the American voter, if democrats continue to control both houses of Congress after this election, last one out of the room turn off the lights
To: Boogieman
I am lost.
The Constitution and a couple of supreme court cases make if very clear that the president has the final word, not to be over ruled by anyone, as to what documents are classified and which are declassified.
In addition, and I did not save the link, the court has said that the president does not have to document the fact that he has declassified a document.
The courts have even ruled that the congress can not pass a law restricting that right to determine what is and what is not classified. The only way to change that power or restrict it, is to amend the Constitution.
There is also the matter of “the fruit of a poisoned tree”. The warrant did not specify personal photos, tax records, family and personal photos, personal mail and the many other items seized. Removing those items was illegal, just as illegal as emptying his wallet or taking his watch.
The fruit of the poisoned tree philosophy means that nothing gained from an illegal search and seizure can be used in a prosecution. Not just the illegal items, but every single item seized is not admissible.
Now I am not an attorney, as any lawyer will recognize immediately, so I would appreciate an attorney explaining how so many offences to Trump's protections under the Constitution and the law can continue to be ignored by the courts.
31
posted on
09/22/2022 8:46:58 AM PDT
by
old curmudgeon
(There is no situation so bad that the federal government can not make worse.)
To: Red Badger
Why was Dearie President Trump's preferred candidate?
He signed off on one of the FISA warrants.
He's part of the coup.
32
posted on
09/22/2022 8:47:39 AM PDT
by
Eagles6
(Welcome to the Matrix . Orwell's "1984" was a warning, not an instruction manual.)
To: Prince of Space
It really doesn’t work to try to convince people that ‘the President waved his hand over these boxes and spake ‘I declassify thee’. Yes, they are trying to hurt Trump any and every way they can, but not even having them stamped declassified’ and/or an official record of what they are is not going to fly with any court.
In government, it doesn’t matter what happened. It matters what was DOCUMENTED in writing happened.
To: Brian Griffin
Leonard Boudin=Chesa’s grand pappy on his mother’s side.
34
posted on
09/22/2022 8:54:13 AM PDT
by
dforest
To: Red Badger
4th Amendment?
4th Amendment?
We doon need no stink’n 4th Amendment.
35
posted on
09/22/2022 8:55:07 AM PDT
by
fella
("As it was before Noah so shall it be again,")
To: ballplayer
Communism: You vote your way in. You shoot your way out..................
36
posted on
09/22/2022 8:55:10 AM PDT
by
Red Badger
(Homeless veterans camp in the streets while illegal aliens are put up in hotels.....................)
To: cuban leaf
37
posted on
09/22/2022 8:56:46 AM PDT
by
fretzer
To: old curmudgeon
“I would appreciate an attorney explaining how so many offences to Trump’s protections under the Constitution and the law can continue to be ignored by the courts.”
I’m not a lawyer either, but it doesn’t take a lawyer to realize that any protections the Constitution offers are meaningless to a lawless government.
To: Red Badger
The 11th Circuit Court of Appeals has ruled in favor of the U.S. Dept of Justice, National Security Division, and blocked the lower court order instructing the Special Master to review the DOJ claimed, “classified documents.” [pdf Ruling Here]
Essentially the order of the appellate court is based on the DOJ calling the material “classified” and “vital to national security”, and the court’s determination they have no authority to question the decision of the executive branch when it comes to matters of national security.
The court (judicial branch) openly states they defer to the DOJ (executive branch) as to any/all claims of harm to national security that may be caused by a review of documents the DOJ-NSD determine, on their own authority, to be identified as classified (sensitive, secret or top-secret). Therefore, if the DOJ states sharing the “classified documents” with a special master may harm national security, they court must accept that position without challenge.
The 11th Circuit Court of Appeals is doing what the Foreign Intelligence Surveillance Court (FISC) does with the DOJ-NSD and any matters defined by the originating Main Justice officials as “national security.” The 11th Circuit is deferring to the DOJ.
The DOJ is granted legal benefit of the doubt on all matters of national security, which puts the DOJ-NSD in ultimate control over the star chamber they operate.
In the post 9-11 surveillance state, this approach by the DOJ-NSD is a pillar holding the Fourth Branch of Government in place, as we have outlined. The other pillars are (2) the Dept of Homeland Security, (3) the Office of the Director of National Intelligence, and (4) the secret FISA Court system.
All four pillars maintain an omnipotent fourth branch of government that operates entirely without oversight. As you can see in the 11th Circuit Court ruling, there is no check or balance in the post 9-11 national security state.
The only way to deconstruct this post-constitutional construct is to deconstruct the four pillars.
Eliminate the Dept of Homeland Security.
Eliminate the Office of the Director of National Intelligence
Eliminate the DOJ National Security Division
Eliminate the FISA Court.
Take down the pillars that hold up the fourth branch of government and the Omnipotent surveillance state is removed.
P.S. People made fun of my prior suggestion for how President Trump should have declassified those documents. Perhaps now the ‘smart set’ people see why my method, while unorthodox, was the best way.
39
posted on
09/22/2022 9:01:29 AM PDT
by
Bratch
To: Red Badger
Free country, justice? Not, not at all.
The rubicon has been crossed. Not just because of this though. There are many other things. Just today and yesterday even.
FBI whistle blower cashiered, so much for whistle blower protection
Georgia’s Eagle group records subpoenaed.
NY relentless persecution of Trump
Civil liberties destroyed for any opposition to the regime
Prove those statements are not true. Prove they are not against what were once our principles.
40
posted on
09/22/2022 9:07:14 AM PDT
by
Sequoyah101
(Politicians are only marginally good at one thing, being politicians. Otherwise they are fools.)
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