In it rule yesterday upside down Judge Aileen Cannonof the order — regarding approximately 100 classified documents seized from the former President Donald Trump’s Mar-A-Lago Mansion—Paragraph 11 not only surpasses Judge Cannon, but it goes further to detail many of the ways in it Judge Cannon fundamentally broke the law.
In my more than 25 years of practice as a civil and criminal litigator (including 3 years as an assistant U.S. Attorney), I do not believe I have read an appellate decision that contradicted it. abandoned than by the lower courts. The 11th lap sent a clear message to Judges Cannon and Trump: stop this.
Let’s take them one by one.
1. The 11th round (in Footnote 4 of the ruling) poured cold water on the idea that the FBI raid was designed solely to harass Trump:
The Supreme Court recognized an exception to this general rule – where “threats to enforce statutes against appellants were not made with any expectation of a valid conviction.” , which is part of a plan to use arrests, forfeitures and threats of prosecution under the statutes to harass appellants. Plaintiffs did not make such an allegation here, nor do we see any evidence in the record to support an allegation.
2. Round 11 completely evades Judge Cannon’s finding that the prospect of facing criminal prosecution is a detriment for which Trump deserves protection:
Second, we found Plaintiff’s insistence that he would be harmed by a criminal investigation. “Tolerating the disadvantage and cost of prosecuting a crime even against an innocent person is one of the painful obligations of citizenship.” Cobbledick v. United States, 309 US 323, 325 (1940).
“In my more than 25 years of practice… I can’t believe I’ve read a lower court dismissal appeal decision.“
3. Round 11 literally assumes that there are no relevant factors in favor of granting an order to Trump:
In summary, there is no Richey factor in favor of exercising fair jurisdiction over this case. Thus, the United States is essentially likely to succeed in proving that the district court abused its discretion in exercising jurisdiction over Plaintiff’s motion as it relates to classified documents.
4. 11th Street also ignited Judge Cannon’s attempt to separate the baby by asserting that the intelligence community could continue to review the national security of 100 documents, but the FBI did. cannot commit any offense with such materials:
This distinction is inexplicable. Through [Assistant Director of the Counterintelligence Division of the FBI] Kohler’s statement, USA fully explained how and why their national security review is inextricably linked with their criminal investigation. When matters involve national security, we “have to give considerable weight to the agency affidavit.”
5. 11th Street also confirms the Justice Department’s argument that allowing the Special Person – or Trump’s defense team – to review 100 classified trademark documents would be an “irreparable harm.” cover” for the United States.
The United States also argued that allowing special counsel and Plaintiff’s attorney to examine classified records would cause irreparable harm. We agree. The Supreme Court has found that for reasons that are “too obvious to call for open discussion, the protection of classified information must be committed to the broad discretion of the responsible authority and this must include full discretion over who can have access to it.” Therefore, courts should order such documents to be reviewed only in the most unusual circumstances. Records do not allow the conclusion that this is such a situation.
6. Finally, Round 11 essentially held that the DOJ had satisfied the most significant element of a final prosecution under the Espionage Act (18 USC Section 793(d).
This is what Section 793(d) states:
“Anyone, legally owned [a document] relating to the protection of a country whose information the owner has reason to believe could be used to inflict injury on the United States or to benefit any foreign country… knowingly withholds the information information and do not deliver it upon request to a U.S. official or employee authorized to receive it.” violate the Espionage Act and “will be … imprisonment for not more than ten years” for each document intentionally retained.
Yesterday, the 11th Circuit held:
The documents in question contained information that “reasonably unauthorized disclosure could cause particularly serious damage to national security.”
The 11th Round almost certainly chose that parallel language to give Judges Cannon and Trump a message: the former president does not have any legal protections against the indictment of violating the Interrogation Act. spies. If he is indicted, the indictment will not be dismissed. If he is convicted, the sentence will not be overturned.
In short, as long as the documents are properly marked as classified in the first place, Trump will have complete peace of mind.
In a nutshell, my response to the 11th Round’s response to Judge Cannon’s order is best captured by Vincent LaGuardia Gambini in his prologue to the 1992 film My cousin Vinny:
“Everything he just said was bullshit.”