DOJ files an Appeal to Judge Cannon’s Special Master Order but it’s extremely narrowly tailored appeal. Updated with additional filings 11:11PM

NOTICE by United States Of America of Appeal, Stay Pending Appeal also filed. “the classified records are the very subject of the government’s ongoing investigation”

—I’m still incredibly busy with my ever growing workload and I had zero plans in publishing an article today or tomorrow. Conversely when I saw the docket alert come in to my phone, I decided to force myself to publish this article

The update can be found at the end of this article. And frankly it’s a must read: docketed a short while ago: MOTION Motion To Unseal Notice of Status of Privilege Review Team's Filter Process by United States Of America. See ECF

…the classified records are the very subject of the government’s ongoing investigation…

To say this was unexpected isn’t exactly accurate. Earlier I explained that there was a 50:50 likelihood that the DOJ would just accept Judge Cannon’s Order or that they would appeal. The pros/cons are applicable to either scenario. But now we know the DOJ has filed an Appeal (and Stay Pending Appeal)

• NOTICE by United States Of America of Appeal -See ECF

• MOTION to Stay Pending Appeal by United States Of America. Responses due by 9/22/2022 —see ECF or via Scribd

A brief analysis is contained herein. Unfortunately my standard level of analysis was preempted by a 5:45PM “working dinner” and I just did not have the bandwidth to do my customary deep dive… however even with these time constraints and prior obligations, I think you might benefit for reading my rushed analysis, or not : ¯\_(ツ)_/¯

The appeal is narrowly tailored to the Classified Documents;

Before we dive into the Government’s filing, it’s important to know that an Appeal can and often does add significant delays. That’s not me saying the Government was foolish to file, in some respects (especially the potential binding precedence) the Government had to file the Appeal. Especially given the rational and overt vitiating of the Government’s rights while protecting a highly complex and ongoing criminal investigation. I would however like to draw your attention to pages 1 and 2.

Most might incorrectly assume that this Appeal is a blanket one. It is not. Here the Government has narrowly tailored arguments around the classified documents, of which these documents run the “classified gauntlet” and the Government argues that part of the Court’s order should be reviewed by the Appellate Court, specifically stating; ..“a discrete set of just over 100 documents—have already been segregated from the other seized records and are being maintained separately” that last sentence is important because this is the Government arguing the harm of the Court’s order is immediate and will have serious implications of the ongoing criminal investigation and would in fact constrain and frustrate the Government’s obligations to investigate criminal acts.

…likely to succeed in its appeal of the Order as it applies to classified records…

..government seeks a stay to the extent the Order (1) enjoins the further review and use for criminal investigative purposes of records bearing classification markings that were recovered pursuant to a court-authorized search warrant and (2) requires the government to disclose those classified records to a special master for review. The government respectfully requests that the Court rule on this motion promptly. If the Court does not grant a stay by Thursday, September 15, the government intends to seek relief from the Eleventh Circuit.

I do think footnote # 1 is relatively important, especially with the understanding that the classified records are central to this particular ongoing criminal investigation…because until the Government’s appeal many of us didn’t know what stage investigators were in. Thus why I think you should read this footnote. It’s clear the Government was/is way further along in this investigation that many of us previously thought;

“…a classification review of these materials was in progress at the time of the Court’s order but has not been completed…”

Moving on to page 3 —here I genuinely believe the Government makes a very strong argument, particularly the “irreparable harm” to our collective National Security. I do think that Trump doesn’t have a qualitative counter argument. Therefore it’s reasonable conclude the Court’s Order does in fact jeopardize our Country’s National Security. Meaning her order essentially told the executive branch that they can’t review (and most importantly) use any of the classified evidence lawfully obtained until the Special Master cleared it. In short the government argues; there’s no way to bifurcate the ODNI risk assessment and the ongoing investigation (I frankly think that’s a very persuasive argument and glad the Government made it) -largely because the Government is attempting to vindicate their rights which the Court was willing to limit…

…government’s vital interest in conducting a national security risk assessment of the possible unauthorized disclosure of the classified records and any harm that may have resulted. The Court thus stated that its Order was not intended to ‘impede the classification review and/or intelligence assessment by the Office of the Director of National Intelligence (‘ODNI’)…’

..cannot be readily segregated from the Department of Justice’s (“DOJ”) and Federal Bureau of Investigation’s (“FBI”) activities in connection with the ongoing criminal investigation, and uncertainty regarding the bounds of the Court’s order and its implications for the activities of the FBI has caused the Intelligence Community

However I think the second paragraph on page 3 is extremely notable and the arguments made by the Government actually makes a lot of sense. Again please understand this particular appeal is secular to the “classified” documents. Unfortunately most will conflate this appeal seeks to re-adjudicate the entirety of the September 5th/6th Order, you can read more here.

…the Court’s order contemplates that it may continue to do so for certain national security purposes. A stay would simply allow the government to continue to review and use the same records—which, again, indisputably belong to the government, not Plaintiff—in its ongoing criminal investigation as well.

What’s interesting is how the Government (rightly so) carved out the Classified Documents and that the Court’s Equitable Jurisdiction was flawed and not exactly a matter of law supported by copious case law. Largely because Trump failed to (and continues to do so) argue that he has “standing” for the return and/or retention of Government property. In nonlegalese Trump can’t retain those documents because they were never his to begin with, ergo he lacks standing.

Again at no time has Trump proffer any case law to support his absurd argument that the records are his and his alone. Factually speaking;

1. Trump stole thousands of pages of Government documents

2. He also improperly stored those classified documents,

3. He actively sought to obstruct the investigation by withholding the documents (pursuant to 2 Grand Jury Subpoenas), and

4. If you lack standing, then you can’t exactly expect extraordinary relief, especially when you fail to articulate any of the 4 prerequisites elements necessary.

As noted on page 5 of the Government’s appeal —not only is the Government calling out the absurdity of Trump’s arguments and the fraught District Court’s Order. But interestingly this isn’t about two beaches of Government fighting over property. This is about the former “executive” who falsely believes those highly classified documents are (incomprehensibly) his Property —

“…Plaintiff has no cognizable “individual” interest in any classified record…”

Moving on to page 6 -here the Government takes Judge Cannon and Trump back behind the woodshed and completely annihilated their argument(s) —honesty it’s this kind of lawyering that absolutely delights me. Largely because it’s the Department of Justice standing it’s ground, it’s inherent rights (as it relates to National Security, and having the chutzpah to call out a bad interpretation of the law… read what I’ve highlighted and underlined because this is some USDA Grade A arguing. And I’m here for it, all of it.

Rightfully so the Government points directly to the following sentence of Judge Cannon’s Order —and it’s this kind of judicious jurisprudence —is why I say the Government’s appeal is just good old fashion good lawyering. As noted, previously the Court stated that there’s no evidence that the Government had a “callous disregard for [his] constitutional rights.” —to be clear there is literally zero evidence proffered by Trump and the previously Court made that overt observation. It matters, a lot:

“…Plaintiff has no legal right to have those records returned to him…”

And then the Government hits a line drive with the following argument (on page 7) because again there is zero medical or otherwise personal information (about Trump) in the classified documents he stole and repeatedly hid from the Government. With respect to the Classified documents here the Government’s argument is absolutely airtight and rock solid

…categorically inapplicable to the classified records at issue in this motion, which are easily identifiable by their markings, are already segregated from the other seized records, and do not include personal records or potentially privileged communications with his personal attorneys.

Regarding the classified documents: Res Ipsa Loquitur

Meaning the Government’s position has never wavered, and they are once again telling the Court that Trump:

• Has ZERO personal claim to the menagerie of the classified documents he stole and improperly stored.

• Each of the classified documents had clear and unambiguous labeling, cover folder etc.

• the potential National Security implications can not be overly stated

• there is no attorney client privilege attached to the classified documents and

• there is also zero Executive Privilege attached to those classified documents because Trump is no longer the “executive”

…no potential assertion of executive privilege could justify restricting the Executive Branch’s review and use of the classified records at issue here…”

One thing to keep in mind in January 2022 SCOTUS held that Executive Privilege is for the incumbent executive, and only in very and I mean very narrowly tailored exceptions can a former executive assert “executive privilege” —but again the Government here has tailored their appeal/argument for the subset of classified documents. Not that my opinion matters but that’s one helluva strong argument made by the Government. This is why it’s smart that the Government is leaning into the stratification of the classified documents…

…SCOTUS; Executive privilege is qualified, not absolute…

Additionally I’m delighted that the Government pointed to what was actually stated in SCOTUS January 19, 2022 holding (you can specifically read more here) because (and not to belabor this fine point) in the Trump v Thompson ruling SCOTUS was clear and I was rather disingenuous when I said I felt less smart after reading Justice Kavanaugh’s malarkey —the fact Judge Cannon used his dissent was, in a word: adorably bonkers. Particularly true given how Judge Cannon contorting of SCOTUS’ holing:

“must be considered in light of our historic commitment to the rule of law” and “[t]he need to develop all relevant facts in the adversary system,” 418 U.S. at 708-09, and the Court thus held that executive privilege “must yield to the demonstrated, specific need for evidence in a pending criminal trial,” id. at 713

I’ve uploaded the Government’s Appeal to my Scribd account but let me also point out something VERY important which was tucked away on page 9 and literally the very last delicious sentence:

“…the government is investigating the adequacy of the response to a grand jury subpoena for all documents in Plaintiff’s possession “bearing classification markings.”

Summary of Government’s Appeal and Stay;

The Government is specifically bifurcating the Classified documents. Additionally they also put the District Court on notice that they are prepared to ask the Circuit Court of Appeals to grant a STAY of the District Court’s Order. That’s not unusual but it should signal to the District Court to order a STAY or her order pending appeal. Just so you know that’s a big of an inside baseball tactic and it’s also colloquially known as the DOJ going H-A-M on the District Court. And that’s why I love working in my industry because when you want the Government to go there and they do so with an eloquently written appeal. It’s that kind of writing that I truly enjoy reading. But there it is, FINALLY👇🏻

That is why courts have exercised great caution before interfering through civil actions with criminal investigations or pending cases

Because like many of you I was genuinely wondering when the Government would articulate this very sentence. I think I’ve reasonably informed my readers the dichotomy of what Trump and Judge Cannon did with respect to the Civil b Criminal. In short if there’s any doubt that Trump is in serious criminal jeopardy those doubts have been eviscerated by the acknowledgement that the Government is now looking at the fact Trump lied or otherwise obstructed the Grand Jury. And that my friends is a factual nugget that you should not overlook

But for now I need to make my way to my Employer’s mandatory dinner meeting. Which starts in about 20 minutes. As much as I’d love to provide you with a far more comprehensive analysis, I’m a sucker for The Palm’s Meatball and Double-Cut Lamb Rib Chops.

Apparently my bosses felt compelled to reward the team with a swanky dinner. Do you remember how I said I was working on one last project for my former boss? Well the LOE (letter of engagement) came in. I was told that I scared the crap out of [redacted client] —although I did repeatedly remind them that our calls are recorded to a dictaphone and transcribed by legal support staff.

Basically I dangled myself to be verbally abused for 23+ minutes and then put the client on notice without embarrassing him with the transcript of the verbal altercation. In short my primary boss was willing to cut that client loose but I argued; no let me handle this and [former boss’ name redacted] trusted me, so you should too. Trust me give me a wide berth and I probably you’ll be happy. Thusly the signed, sealed and delivered LOE. I’m pretty sure my former boss had a hand in this because a few minutes after the LOE was received, I looked out my office window and I was greeted with a rainbow.

Not exactly your daily saltwater therapy but I swear to you, on September 6, 2022 for just a brief moment I am positive that I actually saw purple rain descending from the Clouds.

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Again I might provide a more comprehensive analysis later this evening but that’s unlikely because I already have an Uber set up to drive me home. Lamb & a proper 18 year old single malt scotch go together like peanut butter and jelly. Or at least that’s what I tell myself, if choose to drink during the workweek. Which in of itself is rare because I have to be “on my game” — I’m also taking tomorrow off which means I most likely won’t publish another article until next Monday. Until then, be well-ish

-Filey

Updated to now include the Government’s motion to unseal the Filter Team’s request -August 9, 2022 11:11 PM DC local time

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Before we jump into the latest document that hit the docket, yesterday Hillary Clinton (and her daughter) were on The View. It’s important that you watch how Secretary Clinton described the various protocols in place when she had to read TS/SCI -SAP documents (see August 11th article or here or more recently here) as previously explained the SAP Guidelines are Agency specific but if you want to hear directly from a person who likely held one of the highest security clearance, she explained the “chain of custody” and that’s important because it came up in all three of today’s filing by the Government.

• DOJ Motion to Stay Pending Appeal

• See Exhibit/Declaration filed with the aforementioned

• See Government’s Motion to Unseal —Status of Privilege Review Team's Filter Process by USA

But again I’d urge you to watch Secretary Clinton’s appearance on the View. In short Clinton walks the audience through what she was mandated to do , in order to read highly classified government documents/information. I am also 100% certain that “taking selfies” with the nuclear football is impermissible under the DOD SAP policies

The View @TheView

.@HillaryClinton tells #TheView the classified documents seized from Trump's Mar-a-Lago estate "should concern every American" because information “essential to our country’s defense” could be included. "People literally die to get our government information," she adds.

It occurred to me that when I originally published this article, I neglected to include the attached Affidavit (see ECF or you can pull down the Affidavit via my Scribd account) Yes I proactively redacted the FBI Agent’s name. Below are a few high level take aways:

• Part of the ongoing criminal investigation into Trump’s unlawful and dangerous retention of highly classified documents, the FBI (since 9/11) is considered part of the Intelligence Community

• Investigators asked the ODNI to conduct a thorough risk assessment, Judge Cannon’s Order essentially created an untenable blockage of one of the core functions of the FBI and more broadly the DOJ. I’m specifically talking about counterintelligence tasks by the FBI

• I’d like you to pay particular attention to paragraphs 7 thro 10, because the fact is this investigation into Trump’s (alleged) criminal conduct is in fact “inextricably linked to the Intelligence Community and our Country’s National Security” -paragraph 7 explicitly explains the chain of custody issues, I’ve previously written several articles concerning the SAP (special access program, found here, here and more recently here)

when I took the time to explained the types of Possession and how that can buttress a defendant’s criminal intent (Trump’s state of mind and actions to hide the unlawfully retained classified documents) that was me helping you to fully understand mens rea (state of mind) and actus reus (actions taken) because I get it that sometimes the law and investigations are confusing to laypeople. And hopefully I’m at least providing readers with a plethora of original documents and/or information that’s not in legalese.

Notwithstanding if you decided to take the TL:DR approach (I’m not judging because I know my articles are sometimes heavy reads and contain a cornucopia of documents) then, please I beseech you; please read paragraph 9 in its entirety. Because it is important to understand this complex part of an already complex criminal investigation

Donald Trump has radicalized thousands of Domestic Terrorist aka MAGA-Republicans…

I’m ever mindful that Donald J Trump has repeatedly and viciously attacked the FBI and more broadly the DOJ. Of which at least two of Trump’s own Domestic Terrorist I meanTrump’s MAGA-Republicans, have either been arrested, opted to end their own lives or Local Law Enforcement neutralized them.

So the feigned outrage that I refer to MAGA-Trump-Republicans as domestic terrorist is largely born from the various facts elucidated in various Court Filings. In mid August I detailed for my readers the various “incidents” —and NOPE I’m not sorry for referring to Donald Trump’s extreme MAGA-Republicans as domestic terrorist. Because what other appropriate “label” applies?

Under current Federal law (see 18 U.S. Code § 2331 - Definitions) “domestic terrorism” is defined as;

“…activities that involve acts dangerous to human life that are a violation of the criminal laws of the United States or of any State; appear to be intended to intimidate or coerce a civilian population, to influence the policy of a government by intimidation or coercion, or to affect the conduct of a government by mass destruction, assassination, or kidnapping; and occur primarily within the territorial jurisdiction of the United States.”

And I genuinely wish the mainstream media would properly refer to these acts of terror as “domestic terrorism” -until that happens then the gravity and danger that Donald Trump presents to our Democracy will continue to go incorrectly reported. What happened to our US Capitol on Jan6th was an act of “deadly domestic terrorism” and the MAGA-Republicans who listen to the siren call of Trump and then take up arms against our Government— CALL THEM FOR WHAT THEY ARE: DOMESTIC TERRORIST that Trump largely radicalized. If you don’t like being referred to as “domestic terrorist” then stop acting like one. Really it is truly that simple. For Example and as I previously noted :

• August 12, 2022: Ohio gunman Ricky Shiffer appeared to threaten FBI after search at Trump's Mar-a-Lago estate

• August 14, 2022: Armed Trump supporters hold protest outside FBI Phoenix offices Saturday

• August 15, 2022: Man fatally shoots self after crashing car into barricade near US Capitol Building

• Violent anti-FBI rhetoric surges after Mar-a-Lago raid

• August 15, 2022 Defendant, Adam Bies was formally charged with 18 U.S.C. Section 115(a)(1)(B): Offense Description Influencing, Impeding or Retaliating against Federal Law Enforcement Officers. see August 15, 2022 DOJ-OPA release -also see the Affidavit and Criminal Complaint -of which I had previously provided on August 15, 2022

On August 11, the FBI National Threat Operations Section Social Media Exploitation team received a tip from MEMRI Domestic Terrorism Threat Monitor regarding Gab user “BlankFocus,” later identified as Bies, who allegedly posted violent threats towards the FBI and law enforcement stating: “My only goal is to kill more of them before I drop” and “If You Work For The FBI Then You Deserve To Die”.

According to court documents, on August 10, Bies allegedly wrote: “Every single piece of [expletive] who works for the FBI in any capacity, from the director down to the janitor who cleans their [expletive] toilets deserves to die. You’ve declared war on us and now it's open season on YOU.”

In another post on August 10, Bies allegedly wrote: “HEY FEDS. We the people cannot WAIT to water the trees of liberty with your blood. I’ll be waiting for you to kick down my door.”

Huh now why would Trump fight to keep a report under seal?

It’s almost like Trump has something to hide or that he doesn’t want his violent supporters to actually know the facts and truth. If anyone has another well reasoned and logical explanation, then I’m all ears. But trust me, I’m going to provide you with excepts from the most recent docketed document:

• MOTION Motion To Unseal Notice of Status of Privilege Review Team's Filter Process -See ECF or via my Scribd Account

If you understand the four prerequisite elements necessary to prove attorney-client privilege then you’d understand why Trump’s feigned outrage was bullshart from the start. However in the event you are unaware of the four basic elements to properly establish attorney–client privilege (See Upjohn Co. v. United States, 449 U.S. 383 (1981) but generally speaking:

• an assertion must be made by the privilege holder, and the privilege was not waived by the client

• (i) communication must be made to an attorney (a member of the bar or designee like support staff)

• (ii) made between counsel and client; must relate to facts relayed by the client to the attorney

• (iii) communications were made in confidence;

• (iv) for the purpose of seeking, obtaining or providing legal opinion(s).

But if past is prologue then we already know that Trump has an unexplainable proclivity of asserting a ubiquitous “privilege” claim. Which is adorable because that’s not how the law works. Privilege claims must fe particularized. In nonlegalese that means Trump’s tactic of “everything is attorney client privilege because I said so” does not even remotely pass muster.

Relevant here (and largely overlooked) is just because a target of a complex criminal investigation (of which was properly predicated) that doesn’t necessarily mean that the unspecified documents currently in the Custody of the Government are actually privilege. Merely because Donald J Trump says so, no the Courts need and require particularized claims. Not the ham-handed “everything is privilege” nonsense that Trump consistently pulls.

Here you’ll note the Government is calling bullshit on Trump’s A/C Privilege bullshit - I mean paragraph 9 is just delicious and it also proves that Trump’s attempt to use attorney-client privilege as an opaque cloak to the documents seized by the Government is nothing but Trump attempting to frustrate the ongoing criminal investigation…

.

—so for now we have to wait and see how Judge Cannon will respond to the Government’s Motion To Unseal Notice of Status of Privilege Review Team's Filter Process by United States… and now I believe you are truly caught up. And with that I bid you a very good night because here I am pulling an 16+ hour work day yet still very much committed to having my readers be fully kept up to speed.

So Good Night and I’ll see y’all on Monday or Tuesday but I might publish an article over the weekend. As I’m current working on one that explicitly deals with Domestic Terrorism and how Donald Trump isn’t at all that different from Osama bin Laden (holy crap the typo I’m blaming on the scotch from tonight’s work dinner) but ←yes I’m going there because I’m tired of sugar coating how Trump has radicalized thousands, possibly millions of Americans. And I certainly wish the mainstream media would call it for what it is:

DOMESTIC TERRORISM and Trump is the one who’s radicalizing these terrorist.

-sorry I’m not sorry mainly because it’s factually accurate —also here’s your supplemental daily saltwater therapy

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Whispers I really want to publish an I told you so, on XYZ explaining o dare, but I don’t think that would be constructive given the current destructive pescope of gravity, solemnity and magnitude of just how voluntary trad|\\|\\