Here we have the DOJ's motion for a partial stay pending trial. storage.courtlistener.com/recap/gov.usco…
They don't want to be enjoined from further review of records bearing classification markings and they don't want to give records bearing classified markings to a special master.
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They disagree with the entire order, but they're appealing the part that can cause actual damage to the government and the public. (Screenshot #1)
They've already segregated those records.
They offer three reasons for the appeal. (#2)
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Reason #1: The court's decision was mostly focused on Trump's personal documents and he can't claim he owns government documents marked classified.
Also, documents marked classified can't be covered by any privilege.
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The strategy: Just go after what matters most, and what will be hardest for the courts to wiggle out of.
I think this was pretty smart. Go for what you need. Be reasonable and limit the request to what is essential. Don't annoy (even bad) judges.
Okay, on to Reason #2. . .
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Start out with a little flattery. The court was correct that a national security risk assessment was essential.
The problem: The national security risk assessment can't really be segregated from the FBI's ongoing investigation into what happened with these docs.
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Finally, because Trump doesn't own them, and because they have already been reviewed by the FBI, and because the court was going to allow the security review to continue, Trump can't claim harm.
He still gets his special master (for the stuff that doesn't matter😉)
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The point the DOJ kept trying to make at the hearing was that Trump doesn't own government documents.
Trump said but they took my personal stuff.
Okay, says the DOJ. You can't possibly claim personal ownership of national security documents. . . .
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. . . and possession of national security documents are what matters for charges brought under the Espionage Act.
The strategy in writing this was to give the court a way out, let Trump feel like he won something, and get what's important.
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Agree. (Peter is a law professor emeritus with expertise and experience in criminal defense⤵️)
It's hard to see how the court wiggles out of granting this.
That said, I've seen courts make some very bad rulings (they tended not to like my clients🤷♀️).
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The government confirms its plan to make available copies of all personal and not classified government records, and return the personal items that were not comingled with classified documents. (Those have evidentiary value)
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From the discussion center: Plaintiff hasn't shown that he has standing to seek relief, or that the court properly exercised jurisdiction with regard to the classified records.
This is the part they're digging in on.
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They run through the analysis that allows for equitable jurisdiction, but focusing on the documents marked classified. (#1)
It's obviously an easy argument to make if the focus is just the classified documents. (#2)
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The DOJ still thinks the whole special master thing was unnecessary, but even by Judge Cannon's own reasoning, there is no justification for including documents marked classified in her opinion.
(This isn't an appeal, but if she denies their request, they'll appeal).
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Basically, the DOJ is redoing its argument. Instead of talking about "seized material" they're talking about "documents marked classified."
Because good luck trying to say that Trump, not Biden, controls access to classified documents.
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Here's where they say that handing over highly classified national security docs to a special master is a terrible idea.
IOW, Trump should not share in the decision making of who gets to see the classified documents (the order was for a meet and confer to suggest a SM)
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Here's where they cite law about irreparable harm to Trump. Of course, Trump think that being investigated is an irreprable harm.
But nope, according to the Supreme Court, that doesn't count as "irreparable harm."
Although defense lawyers everywhere would like if it was.
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Yes ⤵️ and this sets them up for an easier argument to make on appeal if she insists on including the classified docs in her order.
It's much cleaner to make the argument regarding the documents marked classified.
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AND I have a silly mistake in the very first Tweet.
But don't worry. I won't delete and start over 😁
Should have been PARTIAL STAY PENDING APPEAL, which makes sense.
When I make a really silly mistake, it's always in the first tweet.
A bit more into the weeds, we get some hints about the empty folders and the importance of the ongoing investigation.
This was from the section on why the government can't segregate the national security investigation from the criminal investigation.
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There are hints throughout that there may be more they don't know yet about what Trump has done with these (and other) classified documents, which explains why they are not yet ready to indict.
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I just read this thread, and I was sort of unclear about the procedures.
They are asking for a stay pending appeal.
If she doesn't grant it, they'll probably ask the appellate court to offer a stay pending appeal.
If they get that, it's really all that matters.
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