Thread by @AkivaMCohen

OK, #LitigationDisasterTourists, let's talk about the latest lawless decision from Judge Cannon - and I *do* mean "lawless"

Not who she selected as Special Master; Dearie is one of Trump's nominations but one the Government consented to.

The government had asked Judge Cannon to stay her decision as it applied to the 100 documents they seized from Trump with classification markings

The government's point was pretty simple: You appointed a Special Master because (well, at least you claim because) you don't trust our filter team to identify potentially attorney-client privileged documents and to look at executive privilege claims. But ...

Private communications between Trump and his lawyers obviously aren't going to be previously marked classified. And there's no viable executive privilege claim that can be made over documents that contained classified information (even if "declassified")

And, of course, Trump *cannot* be the "owner" of documents that had classification markings (whether or not declassified) and has no right to possess them (same) because those are clearly not "personal records"

So what are we doing? Let us review those

Cannon just said "no".

Let's take a look at how she tried to justify it, because it is absolutely insane. Frankly worse than her original order, and that's a low, low bar

First, Cannon's recap. (Note: The government's motion also said "we cannot really distinguish between "intelligence/national security review and criminal investigation; part of the criminal investigation IS the intelligence/national security review")

1) That's not what Kohler said. It wasn't about "bifurcating personnel" it was about the fact that the reviews inherently overlap

2) The government went back to Cannon because you can't ask the Court of Appeals to stay an injunction unless you first ask the issuing court (remember when Sidney Powell learned that? 😂😂)

Because they didn't expect fair play from Cannon, they basically said "if you drag your

feet on this to help Trump we're going to go argue to the 11th Circuit that you constructively denied it"

She issued the denial at the last possible moment.

Seeking a stay is basically asking to enjoin a ruling, so it's like asking for any other injunction: you need a likelihood of success on the merits, irreparable harm, etc.

Here's how Cannon responds to the government's point that Trump cannot possibly have a privilege or possessory interest in documents with classification markings

Seriously, have you ever seen more vigorous, frantic handwaving than this?

The government made a very specific series of points:

1) "Documents with classification markings" is not a difficult subset of documents to identify; they have pre-existing physical marks on them that self-identify them

2) Those docs can't be attorney-client privileged

3) Those docs can't be Trump's personal property (because anything with classification markings is relating to official duties, not purely personal matters)

4) They can't be executive privileged because the current admin has unilateral control over anything classified

Her response to those four specific points is

She offers no argument that there's any practical way to misidentify a document as having classification markings when it doesn't

She offers no argument that any document that had ever been classified might have been a private communication between Trump and his lawyers - and Trump's opposition to the stay request never suggested that was possible

No theory for how a "document with classification markings" might be Trump's personal property (and again, Trump never claimed that was possible)

No argument that the former president could overrule the current administration on how to handle information that *at least at one point* impacted national security

All she says is "well, there's disputes about some documents", so maybe there could be disputes about THESE documents

Let me be as clear as I can: someone submitting an "analysis" like this on a law school exam at the lowest ranked law school in the country wouldn't just fail the test, they'd be pulled aside and gently asked if they really thought this "law" thing was for them

OK, back. Let's look at the rest of this "ruling"

This part is just amazing to me: "you can question witnesses about the documents, so long as you don't talk to them about what the documents are"

"All I said was that if you want to conduct a national security assessment, you need to do it at your own risk that I later find you tainted the criminal investigation and you can't prosecute my her-- *sorry, sorry, President Trump"

That's what "to the extent it becomes truly and necessarily inseparable" means: go ahead and do what you say you need to do, but if I have a different view than you on review, I'm going to order the criminal investigation closed as fruit of the poisonous tree.

The very first thing I do if I'm the government (at the same time as the appeal) is ask Judge Dearie to issue a ruling that no documents with classification markings can be privileged or personal

On irreparable injury, she just went full on "it's the lamestream media and deep state that's the real problem"

Also, here's what Kohler *actually* said:

The classification review is a part of the criminal investigation and national security assessment

The same folks are going to work on both, necessarily

The intelligence review will involve criminal investigation

And now, the craziest part of the order:

Yes, the court firmly believes in the evenhanded application of the law.

But, you know, some animals are more equal than others, and this is TRUMP

And this is why I'm so certain the 11th circuit is going to reverse on this stay issue. Not only did Cannon not offer *any* reasoning to address the merits, but she expressly came out and said "yes, this is a special rule for one man only, don't use this as precedent for others"

That's not going to fly with any sane judge, and it's going to be wildly unlikely that an 11th circuit panel will have two equivalently Trumpist hacks sitting on it.

What Aileen Cannon has done here is write an opinion so divorced from the legal realities and so openly contemptuous of the rule of law that it's going to be all but impossible to uphold.

Most likely outcome: the stay is granted as to classified materials on appeal.