21 September 2022

Pass the Popcorn

In not much more time than it takes to type this sentence, the Court of Appeals for the 11th circuit has ruled that Judge Aileen Cannon was full of crap when she requiring a special master to review document classification.

As I understand it, the special master will continue his work, but only on the documents not flagged as classified, and only to adjudicate whether or not attorney-client privilege is involved, and not for matters of executive privilege, which is a significant reduction of scope, but I need to add the caveat that I am an engineer, not a doctor, dammit!*

An appeals court sided with the Justice Department in a legal fight over classified documents seized in a court-authorized search of former president Donald Trump’s Mar-a-Lago home, ruling Wednesday that the FBI may use the documents in its ongoing criminal investigation.

The decision by a three-judge panel of the appeals court marks a victory, at least temporarily, for the Justice Department in its legal battle with Trump over access to the evidence in a high-stakes investigation to determine if the former president or his advisers mishandled national security secrets, or hid or destroyed government records.


n Wednesday night’s ruling, the U.S. Court of Appeals for the 11th Circuit in Atlanta found fault with Trump’s rationale that the classified documents seized on Aug. 8 might be his property, rather than the government’s. The appeals court also disagreed with the rationale used by U.S. District Judge Aileen M. Cannon in agreeing to have the classified documents reviewed by a special master to see if they should be shielded from investigators because of executive or attorney-client privilege.

“For our part, we cannot discern why [Trump] would have an individual interest in or need for any of the one-hundred documents with classification markings,” the court wrote, noting that the stay it issued is temporary and should not be considered a final decision on the merits of the case.


The panel found particularly unpersuasive the repeated suggestions by Trump’s legal team that he may have declassified the documents — citing an appearance by Trump’s attorneys on Tuesday before special master Raymond Dearie, who pressed them to say whether the former president had acted to declassify the materials in question.

“Plaintiff suggests that he may have declassified these documents when he was President. But the record contains no evidence that any of these records were declassified. And before the special master, Plaintiff resisted providing any evidence that he had declassified any of these documents,” the panel wrote. “In any event, at least for these purposes, the declassification argument is a red herring because declassifying an official document would not change its content or render it personal.”

Prosecutors have said that two parts of her order — allowing the special master to review the roughly 100 documents that were marked classified and halting the criminal investigation surrounding those documents while the special master conducts a review — jeopardize national security interests.

Theoretically, the Trump lawyers could demand an en banc hearing of the appeals court, or they could appeal to the Supreme Court, but given that the special master, , has already shown that he finds the arguments made by Trump attorneys to be specious, I am not sure that they would gain anything from this but a delay.

Of course, the 11th circuit is covered by Clarence Thomas, and his corruption and hypocrisy is legion, so he might stay the order.

*I love it when I get to go all Dr. McCoy!


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