There it is. DOJ got both things it asked for at the 11th Circuit (and from a two Trump-judge panel): not needing to turn over the documents with classification markings for the special master’s review and allowing them to use those ~100 documents in the criminal investigation.
The question now is if Trump’s team will try to take that to #SCOTUS, technically, asking the justices to vacate the stay just entered by the 11th Circuit.
The “Factual Background” section is worth a read for how damning it is—even when presented by a three-judge panel that includes Brasher! This is not some miracle of ~objective~ judging from the 11th Circuit so much as it is damning of Cannon’s actions in the case. Three examples:
In the “Discussion” section — the big legal question — that’s where the 11th Circuit really just tosses Cannon’s ruling aside. “But for the sake of completeness” is rough on Cannon. It’s saying, “there are lots of reasons why we would reverse this district court judge.”
And then a clerk — or judge(?) — started letting off some steam. “WE CANNOT DISCERN” … “HAS NOT EVEN ATTEMPTED” … 🥶
Oh yes, they did it: “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.”
Give this clerk a raise.
“This distinction is untenable,” the 11th Circuit writes about the national security assessment/criminal investigation distinction, echoing what I (and others) wrote (lawdork.com/p/judge-aileen…) after Cannon’s earlier order and the govt argued in pressing for a stay.
The 11th Circuit panel pretty much just says that no one — i.e., Cannon or Trump — has provided anything near the justification necessary to let a special master, let alone Trump’s lawyers, go see the documents with classified markings.
On the “would Trump be injured by the partial stay” factor, DOJ is brief and aggressively to the point — with a numbered list! The 11th Circuit’s answer is, obviously, no.
The final factor in deciding whether to grant the partial stay — the public’s interest — is “self-evident,” the court writes.
That is one crisp, clear ruling. DOJ is on solid ground here.*
And while Trump technically lost the arguments, don’t lose sight of the loss that Aileen Cannon took tonight — esp. coming from a panel made up of two Trump appointees and one Obama appointee.
* = But see: SCOTUS.
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