Litman: Whoops – 11th Circuit Rejects Trump’s Fraudulent Claim on Mar-a-Lago Records

The 11th U.S. Circuit Court of Appeals on Wednesday night overturned U.S. District Court Judge Aileen Cannon’s refusal to grant the Justice Department a freeze on the Mar-a-Lago documents (Cannon’s second outrageous job involving raided White House documents). ). The decision of the Court of Appeal felt like waking up from a bad dream.

Many commentators, myself included, had pointed out that the legal and logical errors in the Cannon decisions were not subtle or even matters of judicial philosophy. Rather, they were mistakes driven by ridiculously poor and possibly biased legal reasoning.

They included fundamental misconceptions such as ignoring the need for proof and evidence, and repeatedly invaded executive branch territory with questions such as whether assessing the damage caused by Trump’s handling of classified documents required the involvement of the FBI.

The 11th Circuit’s charge was final. In a unanimous “per curiam” opinion of two Trump-appointed judges and one Obama-appointed judge, the ruling deviated from Cannon’s gist and almost all of his slippery reasoning. “Per curiam” emphasizes judgment; that is, the court spoke with one voice, not two judges concurring in the opinion of a third author.

And given how quickly the 11th Circuit judges acted, it’s a safe bet that the opinion was being written even as the parties’ briefs arrived. This suggests that the appellate judges did not see the case closed and recognized the urgency of the matter. stop Cannon’s damage to national security and the Department of Justice’s criminal investigation.

On the key question of whether Trump has some interest in the classified documents at issue, the court could not have been more certain: “We don’t understand why [Trump] would have a personal interest or need for some 100 classified documents.

That sounds low-key, but the appeals judge said it was basically a way of saying Cannon didn’t want to deny the department’s request to stay its ruling that classified documents should be off limits to the investigation.

In a similarly ludicrous tone, the court mowed down assumption after assumption that had formed the garbled framework of Cannon’s thinking. Of course, it would be a shame for the US not to be able to initiate a criminal investigation and national intelligence review of the classified documents. Clearly, Trump hasn’t even tried to demonstrate a need for the information contained in the documents. Obviously, Trump won’t be particularly harmed by a criminal investigation.

That last point was especially important because it took Cannon to task — again, politely — for his vexatious decision that Trump shouldn’t be impeached because he’s a former president.

As for Trump’s brazen effort to declassify both ways — suggesting he declassified documents but not providing evidence — the 11th Circuit went even further in torpedoing it than Judge Raymond Dearie, the special master assigned to Cannon’s case. command, had done.

Dearie told Trump’s lawyers that they had to release the declassified evidence or shut up. But the 11th Circuit panel took the issue completely off the table. It reasoned that whether Trump had declassified the documents was a “red herring” because declassification does not change the content of the documents or make them personal. In other words, it’s the content that determines whether a document belongs to Trump or the government.

Presumably, the Court of Appeal’s decision greatly simplifies Dearie’s special task. He can quickly filter out documents covered by attorney-client privilege. As for the balance, including which documents may fall under executive privilege, the 11th Circuit appears to require specific evidence of Trump’s personal interest in the content to even challenge the documents. In any case, the side effects of Cannon’s particular masterful set-up should not detract from the vigorous continuation of the criminal investigation into the Mar-a-Lago documents.

All in all, Circuit 11 signaled a massive reduction, if not elimination, of Cannon’s mischief.

Trump tried to push his declassification defense again in an interview with Sean Hannity on Fox News Wednesday night. “There doesn’t have to be a process,” he said. “When you’re president… you can declassify… even thinking about it.” The district court’s decision blows that fantasy out of the water.

Cannon has received a humiliating warning in his first high-profile case. The obvious lesson for him is that he needs a solid law backed by real evidence to keep the former president going. In light of the 11th Circuit’s guidance, arguably the worst he did is resolved, and the system has dodged a cannonball.

@HarryLitman