Thread by @secretsandlaws

I'll bet DOJ is contemplating filing a motion for reconsideration rather than seeking immediate appeal. Why if it will be futile? To attach a declaration from an FBI Special Agent detailing the harm to nat'l security that may result from any restrictions on FBI's investigation./1

As explained below, DOJ has a strong argument that restrictions on its investigation into potentially EP docs that are classified will (a) harm the IC assessments and (b) harm its own active counterintelligence investigation into what has transpired. /2

https://twitter.com/secretsandlaws/status/1566823245571100672?s=20&t=5AWVohi2C_CyYtj0Z2UChA

The problem when you're looking to appeal is that an appeals court might look at this argument and say "fine, but can you point me to factual support for this in the record?" Appeals courts are used to having a record. That's understandably difficult to create in emergency... /3

...litigation seeking a preliminary injunction. With the benefit of hindsight, DOJ would love to have a declaration from an FBI agent making the points in my earlier tweet about the nat'l security issues at stake, and how you can't separate the FBI investigation and IC review. /4

You can get that in by filing a motion for reconsideration. Yes, she'll deny it and there will be a delay, but then the FBI declaration will be part of the district court record. And then if I'm DOJ, I appeal only to the extent the SM is considering executive privilege. /5

That way, you get the SM appointed & working through the attorney-client privilege & personal record issues. If you lose EP on appeal, at least the SM will already be in place. And seeing how things go with the SM will allow DOJ to determine whether to give up on the appeal./6

But most importantly, this allows you to get the FBI declaration in the record, and then the 11th Circuit can hang its hat on that declaration. Even a favorable panel for DOJ will be leery of making a sweeping decision about an FPOTUS's inability to claim executive privilege. /7

The declaration allows the court to say: "Based on the unique and serious nat'l security issues raised in this case, we find that any potential EP assertion is overriden by the current Executive's compelling need to conduct its investigation into these records. See FBI Decl." /8

Narrow ruling. If DOJ does this, it will enhance its ability to win on appeal -- the delay is worth it IMO. Even the conservative Supreme Court would have problems ignoring this declaration. I would imagine the prosecutors are having this debate with Civil Appellate right now. /9

Civil Procedure Twitter can likely explain that it's not clear that the judge would even permit this filing under the standards for a motion for reconsideration (not a final order or based on newly discovered evidence), and she might not, but I don't see the harm in trying. /

Oh, and of course this declaration would give us yet another unprecedented view into an active national security investigation. Given the stakes, DOJ would likely reveal even more than it has previously, esp. about the work that lies ahead. So if you see this on the docket...

Addressing some of the comments: I'm just an ideas guy, not a procedure guy, so other ideas are encouraged! But I think DOJ will try to get creative about different ways for getting it into the record. All options are shitty, so this is about choosing the least shitty option.

I'm not predicting DOJ will do this, but I guarantee they are debating it and kicking themselves for not filing a declaration with their initial motion. They also don't like doing things that agitate judges, even already hostile ones, so they might decide not to.

If they do file something, I hope they have Director Wray or some other senior FBI official sign it rather than a case agent who will just get doxed again. Could even double-tap with DNI declaration saying "we need FBI's help" with our review.

The underlying reason to do this is that courts have been generally good about deferring to the Executive's nat'l security concerns in litigation. The problem here is that those concerns are relayed in a brief, not a declaration from an official more likely to receive deference.

Okay, here's my idea of how to get it in: a Motion for Clarification seeking to resolve the ambiguity in para. 2 of her injunction. She says "the Government" can still use the materials for classification and intelligence assessments. 1. I'd ask if this means that the FBI...

...can still participate in these things if for intel purposes, rather than crim. investigation. The order suggests maybe?? I'd go on to explain, citing the new declarations, that in a case like this, you can't really separate counterintelligence inquiry from crim. investigation.

I'd explain how this creates a lot of practical difficulties given the overlap, that if construed a certain way could harm nat'l security (or violate order). 2. I'd also consider pointing out that the primary purpose of the classification review is to aid the crim. investigation.

So I'd want to make double-sure it was okay to proceed. In doing so, I'd again explain via the declarations that you can't really separate the IC review and DOJ/FBI investigation - they are intertwined. I think you could do this in good faith and get the declarations in.

Last idea (a little different): an Attorney General declaration saying just like Biden delegated to the Archivist the ability to make EP determinations for the materials in NARA's possession, Biden has now delegated the same power to Garland for materials seized in SW.

Cannon won't like it, but it will allow DOJ to argue, either before SM or 11th Circuit, that the current Executive has actually considered and formally rejected the EP claims for the seized documents. That happened for the 12 boxes at NARA, but it's technically missing here...

...and I worry that the 11th Circuit might use that against DOJ. (It could be Archivist instead, but since we're outside of PRA process now, I think DOJ would prefer that Archivist isn't involved in traditional criminal proceeding)

Just spitballing here