Thread by @AkivaMCohen

Hey, #LitigationDisasterTourists - at about 11pm last night, the US filed its 11th Circuit response on its motion to stay.

As Zuma would put it, let's dive in

(Yeah, I've got little kids, and that show's watchable. It is what it is)

This is how you open a reply brief:

Reset the factual situation
We showed XYZ
Their opp does nothing.

And it hammers the key point: When push comes to shove, Trump has no substantive argument - so much so that they never even really tried pretending otherwise

Then immediately onto Schrodinger's Declassification, making the point that (1) he hasn't actually said he did that, so it can't be a basis to grant relief and (2) even if he'd done it, it wouldn't change the analysis

I wish they had made the point about the *markings* being all that matter at this stage, though

If the 11th Circuit denies a stay, it'll be on the basis that the decision doesn't truly harm the government. So this section of the brief will be key

1) I'm surprised they didn't drop a footnote here about Trump's claims in the opposition that the SM review of docs marked classified was needed *specifically* to "superintend the government's criminal investigation"

As for the red, it's always good to remind an appellate court that "affirming the district court" here will *also* be read as a level of condemnation for the court that issued the warrant. Not that it should matter - but it does.

Guys, guys, you need to do better than this

Yes, great job driving home that he hasn't claimed he designated classified records as personal, or that they belong to him.

But the answer on Judicial Watch isn't "well, in that case the records HAD been designated as personal" - it's "even Judicial Watch held, citing Anderson

that a President DOES NOT have unfettered discretion to classify clearly public records as 'personal'. And they make no argument here that if Trump HAD waived his magic wand and said 'I declare this national security information my personal document' that wouldn't survive review"

"So 1) he hasn't actually claimed he designated any documents with classification markings 'personal records' and 2) even if he made that claim, he'd STILL have zero likelihood of success given the statutory criteria"

And yes, that's what they're shorthanding by citing the statute. But you can't leave that point in shorthand and you can't fail to cite the DC Circuit's holding (as the circuit with exclusive jurisdiction over this stuff) that yes, "I classify these as personal" CAN be challenged

All of this, on the other hand. Though I'd have framed the "you didn't follow the PRA" point a bit differently: "by relying on a right of access under the PRA, Trump is conceding that these documents belong in the government's possession - which means he can't have a 41(g) claim"

This paragraph should have ended with "In fact, Trump does not even bother to argue otherwise"

Short, sweet, and to the point: y'all can just toss "attorney-client privilege" from your consideration of this issue, we all agree it's not involved at all

So that leaves executive privilege, and, well ... Trump just didn't say anything at all in response to our arguments on that.

Again, I would have done something slightly different here: "more, that concedes we're right as to the [X number of] docs without handwritten notes"

We get to the substantive "no, whether it's 'still classified' doesn't matter" section, and they devoted appropriate amounts of space to it

But I also would have spilled a little bit of ink on "the subpoena asked for all documents bearing classification markings, so 'I declassified these documents that bear classification markings' wouldn't mean anything"

Sorry, that second image should've been

This is a good, inside-Appellate-procedure response to the jurisdictional objection we didn't look at in Trump's filing: once the court has jurisdiction over a district court order, it has jurisdiction over the *entire* order, not just the part that allowed immediate review

This is a long wait for irreparable harm, but here we are

Trump argued the harm was "hypothetical" - government's response: yeah, because we can't do the things we'd need to do to confirm one way or the other, which is the problem

The highlighted part here, particularly the first portion of it, ought to terrify Trump.

A good part of his hopes of avoiding indictment is the "won't pursuing him make the disclosures worse" problem.

The government here is basically saying "yeah, we've thought about it and we've got plans to address that issue."

Last substantive bit, and I'm surprised they don't have any legal citations here.

/fin