In its ruling yesterday that vacated Judge Aileen Cannon’s injunction regarding the approximately 100 classified, marked documents seized from former President Donald Trump’s Mar-A-Lago residence, the 11th Circuit not only vacated the decision of Judge Cannon, but went to great lengths to detail the many ways in which Judge Cannon had fundamentally misrepresented the law.
In my more than 25 years of practice as a criminal and civil litigator (including three years as an Assistant United States Attorney), I don’t think I have ever read an appellate decision that was more disparaging of the lower court. The 11th Circuit sent a clear message to Judge Cannon and Trump: stop doing this.
Let’s take them one by one.
1. The 11th Circuit (in footnote 4 of its ruling) explicitly poured cold water on the idea that the FBI raid was designed solely to harass Trump:
The Supreme Court has recognized an exception to this general rule, where “threats to enforce statutes against appellants are not made with the expectation of valid convictions, but are part of a plan to employ arrests, seizures, and threats of prosecution under the color of the statutes to harass the appellants”. Plaintiff has made no such allegation here, nor do we see any evidence in the record to support it.
2. The 11th Circuit completely gutted Judge Cannon’s conclusion that the prospect of criminal prosecution was a harm Trump deserved protection against:
Second, we find Plaintiff’s insistence that a criminal investigation would harm him unconvincing. “Bearing the hassle and cost of prosecution for a crime, even by an innocent person, is one of the painful obligations of citizenship.” Cobbledick v. United States, 309 US 323, 325 (1940).
“In my 25+ years of practice… I don’t think I have read an appellate decision that was more dismissive from the lower court.”
3. The 11th Circuit held verbatim that none of the relevant factors favored granting Trump his injunction:
In sum, none of Richey’s factors favor the exercise of equitable jurisdiction over this case. Consequently, the United States will most likely be able to show that the district court abused its discretion in exercising jurisdiction over the plaintiff’s motion with respect to the classified documents.
4. The 11th Circuit also criticized Judge Cannon’s attempt to split the baby by holding that the intelligence community could proceed with the national security review of the 100 documents that had classified markings, but that the FBI could do no work. criminal with those documents:
This distinction is untenable. Through [Assistant Director of the Counterintelligence Division of the FBI] Kohler, the United States has sufficiently explained how and why its national security review is inextricably intertwined with its criminal investigation. When it comes to matters of national security, “we must give substantial weight to an agency’s affidavit.”
5. The 11th Circuit also affirmed the Justice Department’s argument that allowing the Special Master — or Trump’s defense team — to review the 100 documents with classified markings would do “irreparable harm” to the United States.
The United States also argues that allowing the special master and plaintiff’s counsel to examine the classified records separately would impose irreparable harm. We agree. The Supreme Court has recognized that for reasons “too obvious to require extended discussion, the protection of classified information should be subject to the broad discretion of the responsible agency, and this should include broad discretion in determining who may have access to it.” ”. As a result, courts should order review of such materials only in the most extraordinary circumstances. The file does not allow us to conclude that this is the case.
6. Finally, the 11th Circuit essentially held that the DOJ had already complied with the most important element of an eventual prosecution under the Espionage Act (18 USC Section 793(d).
This is what Section 793(d) states:
“Whoever lawfully has possession of [a document] relating to national defense which information the possessor had reason to believe could be used to the detriment of the United States or the benefit of any foreign nation… intentionally withholds the same and does not release it at the request of the officer or employee of the United States have the right to receive it” violates the Espionage Act and “shall… imprisoned not more than ten years” for each document intentionally withheld.
Yesterday, Circuit 11 celebrated:
The documents in question contain information “the unauthorized disclosure of which could reasonably cause exceptionally serious harm to national security.”
The 11th Circuit almost certainly selected that parallel language to send a message to Judge Cannon and Trump: The former president has no legal defense to an Espionage Act violation charge. If he is charged, the charge will not be dismissed. If he is convicted, the conviction will not be overturned.
In short, as long as the documents were properly marked as classified in the first place, Trump is screwed.
In short, Vincent LaGuardia Gambini best captures my opinion of the 11th Circuit’s response to Judge Cannon’s order in his opening statement in the 1992 film. My cousin Vinny:
“Everything that guy just said is bullshit.”
Source : www.thedailybeast.com