There’s no way to guess what the DOJ’s response to Judge Aileen Cannon’s outrageous order will be, but whatever it is I’m looking forward to it…
As grounds for appeal The Justice Department need look no further than Judge Cannon’s ruling itself which pointed out where jurisdiction in this type of case truly lies..
Footnote #16 Page 18
16 The Court recognizes that, under the PRA, “[t]he United States District Court for the District of Columbia shall have jurisdiction over any action initiated by the former President asserting that a determination made by the Archivist” to permit public dissemination of presidential records “violates the former President’s [constitutional] rights or privileges.” 44 U.S.C. § 2204.
Judge Cannon conveniently misinterpreted the current Executive Branch’s position on #FPOTUS’ executive privilege claim...
Footnote #15, page 17
15 On the current record, having been denied an opportunity to inspect the seized documents, Plaintiff has not formally asserted executive privilege as to any specific materials, nor has the incumbent President upheld or withdrawn such an assertion.
We know better than that though, don’t we…
Acting Archivist of the United States
The Counsel to the President has informed me that, in light of the particular circumstances presented here, President Biden defers to my determination, in consultation with the Assistant Attorney General for the Office of Legal Counsel, regarding whether or not I should uphold the former President’s purported “protective assertion of executive privilege.” See 36 C.F.R. § 1270.44(f)(3). Accordingly, I have consulted with the Assistant Attorney General for the Office of Legal Counsel to inform my “determination as to whether to honor the former President’s claim of privilege or instead to disclose the Presidential records notwithstanding the claim of privilege.” Exec. Order No. 13,489, § 4(a).
The Assistant Attorney General has advised me that there is no precedent for an assertion of executive privilege by a former President against an incumbent President to prevent the latter from obtaining from NARA Presidential records belonging to the Federal Government where “such records contain information that is needed for the conduct of current business of the incumbent President’s office and that is not otherwise available.” 44 U.S.C. § 2205(2)(B).
How on Earth could Judge Cannon have missed that?
I’m sure the Office of Legal Counsel can easily clear up any ambiguity with a memo...
National Review
The government’s argument is that Trump does not have standing as to the documents that are relevant to his special-master petition because those documents, in the main, are government records — i.e., presidential records of the Trump administration (which would include attorney-client privileged communications between Trump and White House counsel, and related work-product). To the limited extent that there may be attorney-client communications between Trump and his private lawyers (and related work-product), those are addressed by the filtering process that the government implemented — again, under the authorization of the magistrate judge who issued the warrant.
By contrast, Judge Cannon finds that Trump has standing because he has ownership and possessory interests in the premises searched and “at least a portion” of the seized property. That would be pertinent if Trump were asking for a return of his property. To the contrary, he is asking for a special master to oversee the government’s segregation of privileged documents. The Justice Department contend that those documents are government property, not Trump property.
Cannon does not grapple with that claim. The closest she comes is this deflection of it: “Although the Government argues that Plaintiff has no property interest in any of the presidential records seized from his residence, that position calls for an ultimate judgment on the merits as to those documents and their designations.” And she’s not even right about that: For now, there is no need for an ultimate judgment; all that’s called for is a preliminary judgment that the documents appear to be covered by the Presidential Records Act, which would presumptively make them the property of the United States.
Does the DOJ even really need to appeal this shit?
This ruling is so bad I have to wonder if #FPOTUS wrote it himself...
Slate
...[T]o the extent the order authorizes a special master to review the materials for assertions of executive privilege, there is no basis for this ruling. Both federal statutory law in the form of the PRA and precedent including Nixon v. GSA show that Trump cannot successfully assert executive privilege against the executive branch as it conducts executive functions. (Although this essay is written in our personal capacities only, we unpacked this law in detail in an amicus brief in this case in which we participated.)
(snip)
...[T]he question of whether there should be a special master for the smaller quantum of attorney-client privilege materials (here, about 500 pages), is a closer one. Though reasonable people may disagree, the ruling was not extraordinary in this regard. But to bootstrap that narrow ruling into a review of the full 11,000 documents for assertions of executive privilege that are beyond the purview of a special master is wrong.
(snip)
...[I]n the United States, everybody should be subject to the same legal rules. If any of us had engaged in this course of conduct, including the long pattern of apparent deception and concealment of these documents, we would have been subject to a search warrant and, indeed, potential prosecution, long ago. If for no other reason than that, the DOJ decision on appealing the court decision should consider the foundational principle here at stake. In the United States, no one is above the law.
Trump’s Attorney General agrees...
This train wreck of a ruling was pulled straight out of the judge’s ass as far as I can tell...
New York Times
“This would seem to me to be a genuinely unprecedented decision by a judge,” Mr. (Paul) Rosenzweig said. “Enjoining the ongoing criminal investigation is simply untenable.”
(snip)
“Even if there is some hypothetical situation in which a former president could shield his or her communications from the current executive branch,” Mr. (Peter) Shane said, “they would not be able to do so in the context of a criminal investigation — and certainly not after the material has been seized pursuant to a lawful search warrant.”
(snip)
While Mr. Trump does not own the government documents he repeatedly failed to return, the warrant permitted the F.B.I. to take anything else of his that he had left in the same containers as evidence of how he stored sensitive information.
(snip)
“To any lawyer with serious federal criminal court experience who is being honest, this ruling is laughably bad, and the written justification is even flimsier,” he wrote in an email. “Donald Trump is getting something no one else ever gets in federal court, he’s getting it for no good reason, and it will not in the slightest reduce the ongoing howls that he is being persecuted, when he is being privileged.”
Anybody who has read beyond the headlines understands this ruling is illogical and goes out of it’s way to contort and contradict itself in an effort to misinterpret the law and legal precedent.
Again… I don’t know exactly what the Department of Justice has in store for us, but I’m expecting them to take Judge Cannon and Trump’s lawyers to school.
Comments are closed on this story.