Thanks to a judge he put in place for just such occasions, Trump is at the moment protected by Aileen Cannon’s “special master” ruling. The intelligence community can go ahead with the sorry business of exfiltrating sources, closing down networks, and trying to gauge the extent of damage caused by Trump’s actions, but the DOJ is enjoined from using any of the documents they’ve recovered “for investigative purposes.” Whatever that means.
That doesn’t mean the case against Trump is on hold. If the DOJ intends to pursue an indictment of Trump and others over these matters, it can go ahead with witness interviews, subpoena materials held by other individuals, and use the documents recovered in January and June as a basis.
If the Justice Department doesn’t intend to seek an indictment of Trump, then it’s making a blunt statement that some people are above not just some laws, but all laws. But there’s no reason at this point to think that there will not be a grand jury indictment handed down against Donald John Trump.
However, that doesn’t address the issue of what the DOJ should do, right now, in response to Judge Cannon’s gift to Trump and the knowledge that Trump stole, and may well have shown to others for personal gain, some of the most nation’s important secrets.
One obvious move is to appeal the decision made by Cannon. Even former Trump Attorney General Bill Barr has stated his feeling that the DOJ has to appeal this ruling or risk some of Cannon’s bad interpretations of the limits of privilege standing unchallenged.
That appeal would go to the 11th Circuit Court of Appeals, where Cannon’s clearly stated refusal to follow law, precedent, facts, or procedure should net a fast reversal. Except, as Bloomberg reported back in 2020, the then Republican-led Senate helped Trump pack the 11th Circuit with a string of conservative hardliners who were opposed by Democrats, voting rights groups, and many others. Most of these judges reached the court with exactly 52 votes, along strict party lines.
Of the court’s 11 members, only four were appointed by Democratic presidents. Over half of all its members were appointed by Trump. There’s a fair chance that whether the matter goes to a traditional three-judge panel or, more unusually, all 11 judges sitting en banc, the Trump-appointed justices could uphold part or all of Cannon’s ruling. Even if they don’t—none of them are are quite as unqualified for their roles as Cannon, so there’s a chance they might have some respect for plain old reason—going through the appeal process will net Trump what he really wants anyway: a delay.
In over 3,000 lawsuits, Donald Trump has demonstrated that anyone with enough money can keep the courts tied up over the most simple decisions for months or years. When he was in the White House, Trump routinely showed disdain for Congress by punting every single request into the courts to fester, age, and circulate endlessly. As the ACLU said in 2019:
His first response was to stonewall on all subpoenas. He argued that House committees have no authority to investigate except where their investigation is tied to a specific piece of legislation. But that argument is dead wrong, and the federal courts have properly and resoundingly rejected it.
But being “dead wrong” doesn’t do a thing to stop Trump from using the courts to throw everything into slow motion. When even a “rush decision” from a court can involve months of delay … why not?
Cannon’s decision could be sent down from the 11th, go back up, get appealed at a higher level, and work its way all the way to the Supreme Court … some time in 2027. Assuming that court doesn’t give Trump a very friendly response and start the whole process over again, this would be a good time for Trump to toss a new stack of papers on Cannon’s desk so she could invent some new reason no one can peek at what he stole.
The House Ways and Means Committee subpoenaed Trump’s tax records in May 2019. The law giving them the right to do exactly this could not more straightforward or more certain. Trump sued to stop the subpoena. The federal district court in D.C. ruled that he had to turn over the documents. Trump appealed to the D.C. Circuit Court of Appeals. It also ruled he had to turn over the documents. Trump appealed to the Supreme Court. The Supreme Court … sent it back to the lower courts to “further assess the congressional subpoena.” The appeals court yet again upheld the congressional subpeona but gave Trump an opportunity to appeal once more. Which he did. That was last month.
No matter how obvious it may seem and no matter how serious the matter may be, an appeals process to knock down Cannon’s ruling could be just as frustrating, and just as endless. The Justice Department is no doubt sweating over whether an appeal will actually slow things down. Which it easily could, no matter how badly they must want, and need, to appeal.
But whether the DOJ appeals or clenches its teeth and proceeds with the selection of a special master under the assumption that at some point Cannon will be satisfied enough to stop sticking a wrench into the judicial process, there are other things that could be done.
Over at emptywheel, Marcy Wheeler has one suggestion: The National Archives and Records Administration (NARA) has at least four pre-existing claims over those same documents, claims that it is obligated to meet no matter what Judge Cannon might say. These include subpoenas from the Jan. 6 special committee; subpoenas connected to the DOJ investigation of events on Jan. 6; requests for documents in the case of Trump fundraiser (and accused illegal foreign agent) Tom Barrack; and a subpoena from former FBI agent Peter Strzok in a lawsuit related to his firing after Trump repeatedly dragged him through the mud.
For all of them, NARA has a legal obligation that precedes Judge Cannon’s order. So if any of the material owned by NARA that Cannon has enjoined for Trump’s benefit is covered by these subpoenas and the Barrack discovery request, it will give NARA an additional need to intervene, on top of the fact that Cannon has made decisions about property owned by NARA.
Cannon has ordered the DOJ to put down those documents, except for reviewing the potential damage (spoiler: it’s huge). But NARA may not feel, since it’s not a part of the criminal case against Trump, that it’s affected by this ruling. Its pre-existing obligations should only be constrained by its interpretation of whether or not these documents are protected by executive privilege, and it’s already made the call on that one. So some of these documents could go from the NARA to the Jan. 6 committee or to courts involved in other cases … assuming there’s someone there with the clearance to receive them.
None of that solves the real problem, which is not just evaluating the damage that Trump has caused, or weighing the questions of privilege. It’s how Trump should pay for the intentional theft of the most sensitive documents—and for the impact that theft has already had on the nation’s security.
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