Mark Sumner reports the Department of Justice will file an appeal of Judge Aileen Cannon’s ruling that a special master must be appointed to review the material seized by the FBI at Mar-a-Lago carrying out a search under warrant. While that appeal is pending, DOJ is also asking the Judge to revisit her ruling.
According to a report in The NY Times by Glenn Thrush, Alan Feuer and Charlie Savage:
...In a set of filings, lawyers for the department announced their intention to appeal key parts of Judge Aileen M. Cannon’s ruling. They cautioned that they would move ahead with asking an appeals court to formally do the job of blocking those sections of Judge Cannon’s ruling if she did not agree to do so herself by next Thursday.
Her order, issued on Monday, has prevented the department from using the documents in its investigation of Mr. Trump, including some marked as highly classified, that the F.B.I. took from the former president’s resort, Mar-a-Lago, during a court-authorized search on Aug. 8.
In its complicated 21-page filing, the government also asked Judge Cannon to exempt “classified records — a discrete set of just over 100 documents” from her order to allow the national security analysis and investigation to proceed. Prosecutors say it is crucial they be allowed to work with the documents in order to assist a risk assessment of materials being conducted by the Office of the Director of National Intelligence.
emphasis added
Among other things, DOJ and Trump’s lawyers would have to agree on a special master to review the material under Cannon’s ruling, and there are also unresolved issues of executive privilege.
...The Justice Department lawyers wrote that “uncertainty regarding the bounds of the court’s order and its implications for the activities of the F.B.I. has caused the intelligence community, in consultation with D.O.J., to pause temporarily this critically important work.”
The government and the public, the department added, “are irreparably injured when a criminal investigation of matters involving risks to national security” was frozen or delayed.
The filing was unsparing in its criticism of the ruling, and tried to place the onus back on Judge Cannon, a conservative who was appointed the bench in late 2020 by Mr. Trump.
And it creates a richer factual record in the case that could later be used in the appeal by introducing what the department said was the impediment it created to carrying out the national security risk assessment.
Judge Cannon has granted unprecedented deference to Trump’s interest in this case, despite the obvious national security issues and potentially serious criminal liability on the ex-president’s part. She has also demonstrated that she is averse to any criticism of her rulings.
Marcy Wheeler at Empty Wheel will doubtless weigh in on this shortly, but she has raised several concerns about what has been happening in this case.
All in all, this is like everything Trump touches: the deeper one looks, the worse it gets, and the chaos continues to spread.
Watch Trump, his lawyers, his supporters in the media, and the leadership of the Republican Party try to distract away from how criminal actions by Trump and his enablers has put national security at risk by using the tactic of — in Steve Bannon’s words — “flooding the zone with shit.”
Update: Marcy Wheeler analyzes how the DOJ’s moves are going to pressure Cannon and Trump. www.emptywheel.net/…
In this post, I’ll attempt to explain why, while the motion for a partial stay may not work, it likely will improve DOJ’s tactical position going forward. There are other parts of this that, I think, are tactical as well. But the main point seems to be to force her to heighten her already egregious stance before DOJ is forced to appeal this.
Read it — it’s a concise analysis of all the ways this move by DOJ puts Cannon and Trump in a box.
Update: Hat tip to jamess for finding this video from the Meidas Touch network that explains just how effective the move by DOJ is in putting Cannon and Trump on the hot seat.
Friday, Sep 9, 2022 · 2:03:52 PM +00:00 · xaxnar
UPDATE: jamess has followed up with the latest Meidas Touch video from Ben Meiselas that looks at how the DOJ has forced Judge Cannon to respond — and how this puts her in a real bind AND drops the hammer on what Trump can do as well. It’s a surgical strike done with extreme competence.
Marcy Wheeler weighs in on this with an important point: A LIKELY LOOMING BATTLE IN THE STOLEN DOCUMENT CASE: CLASSIFIED WHITE HOUSE COUNSEL DOCUMENTS
...But I want to flag something that I think will be contentious going forward: Classified documents involving White House Counsel.
In its description of why all classified documents should be exempted from Judge Cannon’s injunction, DOJ noted that classified records cannot belong to Trump, and so he has no basis to make a Rule 41(g) motion. But their explanation of why such records would be excluded from any attorney-client privilege determination is more telling. It only extends to Trump’s personal lawyers.
emphasis added
...But there are known government documents in which the White House Counsel were involved that are likely among the ones Trump would most like to withhold: starting with discussions about materials (including a mention of Burisma) excised by the White House Counsel’s office from the transcript of the call between Trump and Volodymyr Zelenskyy.
The particular language used here — specifying that attorney-client privilege only extends to stuff involving Trump’s “personal” or “private” attorneys — suggests there are materials at issue involving Trump’s non-private attorneys, which could be DOJ but is most likely the White House Counsel.
emphasis added
This whole thing just keeps getting more interesting, to put it mildly.
I will note that at this point we know more about the top secret documents seized from Trump than we know about his tax returns...
Friday, Sep 9, 2022 · 11:32:36 PM +00:00 · xaxnar
Update: Digby lays out just how unqualified Aileen Cannon is to be serving as a judge. It would be unbelievable — but it’s so Republican.
Take a look at who it was they planted in that slot for a lifetime appointment as a federal judge:
Aileen Cannon, a 38 year-old lawyer with no judicial experience and limited resume, was handed a LIFETIME appointment as a federal judge just as Trump left office. Cannon’s primary credentials for the job were apparently her young age and membership in the Federalist Society.
Her professional experience was so limited that she was forced to admit on her Sen Judiciary Comm questionnaire that she had never made any speeches, produced any reports, participated in any panel discussions, spoke at any conferences or written for any bar association.
Read the whole piece. Among other things, it speculates Cannon was nominated for that judgeship just so Trump would have a friendly court nearby in which to file his frequent lawsuits.