Thread by @AkivaMCohen

Hey, #LitigationDisasterTourists, Trump has filed his 11th Circuit opposition to the government's motion to stay Judge Cannon's order with respect to the 100 documents bearing classified markings. Let's do a live read?

Background: The government basically rehashed its stay application that Cannon denied, this time filing it in the 11th Circuit and using phrases like "of course 'documents bearing classification markings' are easy to segregate, THEY ARE THE ONES WITH CLASSIFICATION MARKINGS"

It was framed, essentially, as a "Motion to say 'what the fuck, Judge Cannon?'" based on the basic principles of "Trump can't have a possessory interest in documents with classification markings, or any conceivable privilege in them"

Now Trump is responding

Unless they manage to land a majority Trumpist panel, this is EXACTLY the wrong framing for the 11th Circuit. The last thing you want to be conceding to an appellate court is that your true goal is to supervise the DOJ's prosecutorial discretion

So, a couple of things here.

1) Yes, asking the Circuit after the District Court denied the stay is absolutely what's happening. That's true in almost *every* case where someone seeks a stay from a circuit; they have to have first asked the District Court to stay its own order

The one exception to that is if you can convince the circuit court that asking the trial judge would have been futile, which is basically impossible

2) The government is not asking anyone to "presuppose" anything. They're not asking the Court to find that the materials *are* classified. Only that if the documents have *classification markings* Trump has no conceivable basis to prevent their review.

Trump's team is going to strive to collapse that distinction as much as possible; it will be harder to get that past an 11th Circuit panel than it was Judge Cannon, not only because Cannon is uniquely horrible, but because it *is* a panel.

Even if there were two judges on the panel inclined to ignore the distinction, the odds that there'd be 3 are tiny - and that third judge would write a dissent calling that out. So the majority will need to have some way to deal with it, not just handwave it

3) The government *gets* to unilaterally identify stuff as classified. That's a given. Even if Trump magically declassified certain documents, the current administration could *re*classify them at will.

Who else do you think gets a say in that?

They are also arguing that the order appointing a Special Master and requiring disclosure of (allegedly) classified records is not immediately appealable. Interesting, but I think likely wrong (for the same reason orders requiring disclosure of privileged docs are appealable)

i.e. once the docs are disclosed you can't unscramble that egg

I'm not going through their recounting of the factual and procedural background; you all know it by now

Again, this framing worked for a bad District Court judge you knew was predisposed to go your way; it's not going to sell as well to an 11th Circuit panel

This is how I would have framed my entire response to this application, were I representing Trump: there's a heavy burden to get a stay, and even if you think the District Court judge was wrong you can't just substitute your discretion for hers. Fight the burden.

(Sorry for the delay, client work ongoing)

The government argued that the injunction doesn't give them enough guidance to keep reviewing for national security without fear of being second guessed; Trump leads with "it says you can do that" (this is smart, it's his strongest point)

This, on the other hand, is not a smart argument. For one thing, the government *did* present evidence that the documents had classification markings, including the famous picture & the affidavit of a person with knowledge. Again, he's trying to conflate "classified" w/ "marked"

For another, were I in Trump's shoes I would not want to further highlight that I had provided the District Court exactly ZERO evidentiary basis to support an injunction. If *neither side* presented proof, injunction should've been denied, because it was the moving party's burden

That phrasing is a self-inflicted wound, and completely unnecessary.

None of this addresses the government's point that "documents with classification markings" categorically CANNOT belong to Trump and he therefore has no basis to seek their return

There's a whole shitload of 11th circuit precedent for the rule that "just saying that things are disputed doesn't actually make them disputed", and Trump has not raised even the shadow of an argument that documents bearing classification marking might be his to keep

Again, they're conflating "classified" and "marked classified" and basically arguing that Trump was still president in 2022.

Also, 793 doesn't only apply to classified information and, most importantly, "I'm not guilty of the offense" isn't relevant now

They put their best argument in a footnote - the only argument that these docs could somehow be privileged - because of course they did.

But also because "OK, we'll stay the order except as to docs with handwritten notes, and only the notes need to be shown to the SM" would be a terrrrrible outcome for them, and they know it.

Now they finally get to the most important - but also most facially ridiculous - part of their argument: that Trump has a "possessory interest" in documents with classification markings (i.e. a right to have them in his possession)

The gist of the argument is this: Trump had unilateral discretion to "classify" documents as "Presidential" or "Personal" under the PRA, so even if he did it in bad faith or in ways that are facially unreasonable, he gets to keep whatever he wants

There are, shall we say, some problems with this.

First, the Appellate Courts are NOT going to be impressed with the Cartman Defense

Second, lol, no, the President doesn't have the unilateral right to designate anything he wants as "personal records" even if they have to do with his official duties. The Judicial Watch and Armstrong cases already addressed that issue - this is from Judicial Watch

Third, and apparently recognizing that problem, they fall into a backup argument that "well, the PRA gives the former President a right of access to Presidential Records, and isn't that the same as a right to possession?"

Uh ... no. No it isn't.

And that footnote - "ok, maybe Trump shouldn't have them, but then the Archives should, not the DOJ" is just impressively pathetic.

You don't have standing to assert the Archives' right to possession, and the Archives brought the DOJ in

That, btw, is the *entirety* of their merits argument. It's a complete face-plant that worked with Cannon only because she wasn't evaluating the arguments in any meaningful way.

They are definitely on stronger (though not strong) ground on irreparable harm.

"harm to Trump is harm to the public" dear God

I'm gonna leave the "you can't review the SM appointment" stuff alone - it's a separate issue and I don't have time for it with the hearing coming up.