“The absence of this ‘indispensab[le]’ factor…is reason enough to conclude that the district court abused its discretion in exercising equitable jurisdiction here.”
To say the 11thCCOAs ruling was brutal —might be an understatement. Unquestionably the 29 pages read like what happens when you’re referred to the principal’s office and you end up with a verbal shellacking that will leave a mark…
While noting that District Court Judge Cannon had erred when she determination that Trump had “an interest in some of the seized materials” because it included “medical documents, correspondence related to taxes, and accounting information… appellate panel found that “none of those concerns apply” to the approximately 100 purportedly classified documents at issue in this appeal.
“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…For our part, we cannot discern why plaintiff would have an individual interest in or need for any of the one-hundred documents with classification markings.”
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Donald Trump’s argument
The 11thCCOAs directed the Plaintiff to file an expedited response to the United States’s motion for partial stay.
Plaintiff responded that (1) we lack jurisdiction over the order appointing a special master;
(2) he has Rule 41(g) standing;
(3) that the United States has not proved that the documents that are marked “classified” are actually “classified”; and
(4) the district court properly balanced the harms in enjoining the United States.
The Government’s Argument:
The United States replied had four primary arguments, again this was secular to the 100+ classified documents. To be honest when I read Judge Cannon’s Orders. it made my head spin because of the contradictory arguments contained therein. Literally I had to reread her rulings multiple times because the notion of how can you type so many words but actually say nothing at all, came to mind, repeatedly. Notwithstanding below are the four primary arguments made by the Government:
(2) Plaintiff lacks Rule 41(g) standing as it pertains to the classified documents;
(3) The records bearing classification markings have no plausible case for being privileged, and even if Plaintiff had claimed to have declassified them, the United States would still need to assess them and (
4) without a stay of the district court’s order as it regards the classified documents, the government and the public will be irreparably harmed.
11thCCOAs Holding:
As previously explained the Government’s Appeal was extremely narrowed, it primarily focused on setting a carve out of the classified documents. Strategically it made a lot of sense why the Government’s appeal was so narrow. Which is in fact reiterated and affirmed —for example I now refer you to page 2 —which reads in part:
We decide only the narrow question presented: whether the United States has established that it is entitled to a stay of the district court’s order, to the extent that it (1) requires the government to submit for the special master’s review the documents with classification markings and (2) enjoins the United States from using that subset of documents in a criminal investigation. We conclude that it has.
We stress the limited nature of our review: this matter comes to us on a motion for a partial stay pending appeal. We cannot (and do not) decide the merits of this case. We decide only the traditional equitable considerations, including whether the United States has shown a substantial likelihood of prevailing on the merits, the harm each party might suffer from a stay, and where the public interest lies. (emphasis added)
The 11thCCOAs held; the DOJ may resume its examination of the trove classified documents recovered during the August 8, 2022 execution of a lawful search warrant. Moreover the Court also held: the Government is not required to submit the documents to the recently-appointed special master for review. Importantly though, the DOJ’s ongoing criminal investigation, likely seeks to determine who accessed the classified materials, whether any of the classified materials were (unlawfully) compromised and whether there are additional classified materials are unaccounted for
That the rhetorical question appears to inching closer to an fact based answer, which is probably not. Commonsense dictates that if you do not have a full accounting of classified documents then it is possible you don’t know what you don’t know. Lastly you can read more concerning the “does the government have a complete list of documents and have they successfully clawed those documents back” here, here and specifically the recent House Oversight Letter to NARA -which was discussed last week. So ICYMI👇🏻
But back to the 11thCCOAs Ruling because the following is pretty important:
the court held that the district court erred in “determining that Trump had an interest and possession of the classified documents” -Trump has zero personal interest in the classified documents, nor can he make a colorable argument that “owns” the classified documents/
The court found that Trump…failed to proffer any evidence that he had declassified said documents. To date Trump has yet to produce any Agency declassification review. Nor has Trump proffered any declaration(s) that there was a standing “oral order” —because duh there never was one.
that the irreparable harm Trump argued is likely overstated and doesn’t supersede the need for protecting our country’s sources and methods or generally the public’s inherent interest.
“has to show that he has a need to know the information contained in the classified documents. Nor has he established that the current administration has waived that requirement for these documents.”
“…there was no evidence of declassification.” Bejesus read pages 19 thru 23 a total & complete annihilation
The court went on to dismissed Trump’s claims that he somehow and magically declassified all of the documents prior to the FBI executing a search & seizure warrant of Mar-a-Lago. Further opining that nothing in the record suggest or unambiguously prove that Trump had actually declassified any of the documents. The Court held: “there was no evidence of declassification.”
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 declassification argument is a red herring because declassifying an official document would not change its content or render it personal. So even if we assumed that Plaintiff did declassify some or all of the documents, that would not explain why he has a personal interest in them.
This factor—the Plaintiff’s personal interest (or lack thereof) in the documents—also weighs against exercising jurisdiction.
Footnotes bring me life…
And lastly the 11thCCOAs brick by brick dismantled the District Court’s Richey factors/elements and how the lower court erred -but the footnote is especially delicious because that’s a low key jurisprudence smack down and I’m here for it. Not that this matters but two of the three judges were nominated by Trump and later confirmed by the Senate. That tiny fact nugget is like the cherry on a proper sundae…
“…the district court concluded that Plaintiff did not show that the United States acted in callous disregard of his constitutional rights...No party contests the district court’s finding in this regard. The absence of this “indispensab[le]” factor in the Richey analysis is reason enough to conclude that the district court abused its discretion in exercising equitable jurisdiction here. Chapman, 559 F.2d at 406. But for the sake of completeness, we consider the remaining factors.”
…inextricably intertwined with the DOJ’s criminal probe into Trump’s possession…
The 11thCCOAs rejected the “district court’s concern over the potential for prosecution if the DOJ continued to examine the classified documents”. The 11thCCOAs held: “such concerns did not rise to a sufficient level to issue an injunction”. Lastly, the 11thCCOAs noted that the portion of the preliminary injunction, which authorized the DOJ to examine the classified documents for national security, but not criminal, purposes was unreasonable and an untenable situation that could have grave national security consequences. Further noting in this specific case, that the known and unknown national security concerns are “inextricably intertwined with the DOJ’s criminal probe into Trump’s possession of the documents” —to say the 11thCCOAs rejected Trump’s arguments and further ruling how the district court erred —the 11thCCOAs ruling is truly a magnificent read…
Again you can pull down a lightly highlighted copy of the 11thCCOAs ruling via my Scribd Account or you can pull down the filing directly from the 11thCCOAs (if I did that embed correctly it should take you to the unpublished tab)
And you daily saltwater video therapy. But for now I need to get ready for a 2PM teams call but I figured I’d use my lunch time to finish up the edits of this article while simultaneously shoving a sandwich in my calorie hole.
“…the district court concluded that Plaintiff did not show that the United States acted in callous disregard of his constitutional rights...No party contests the district court’s finding in this regard. The absence of this “indispensab[le]” factor in the Richey analysis is reason enough to conclude that the district court abused its discretion in exercising equitable jurisdiction here. Chapman, 559 F.2d at 406. But for the sake of completeness, we consider the remaining factors.”
Absolutely epic, isn't it?!! And thank you for fitting an analysis into your busy, busy workday, Mic.
Re:
“…the district court concluded that Plaintiff did not show that the United States acted in callous disregard of his constitutional rights...No party contests the district court’s finding in this regard. The absence of this “indispensab[le]” factor in the Richey analysis is reason enough to conclude that the district court abused its discretion in exercising equitable jurisdiction here. Chapman, 559 F.2d at 406. But for the sake of completeness, we consider the remaining factors.”
Absolutely epic, isn't it?!! And thank you for fitting an analysis into your busy, busy workday, Mic.
What an epic slap down!