Thread by @AkivaMCohen

Hey, #LitigationDisasterTourists, remember what I said about the difference between Trump judges and Trumpist judges? The 11th Circuit just drove that home to one Donald J. Trump in an opinion issued by a panel including two judges he appointed

https://twitter.com/kyledcheney/status/1572727110380453889

The ruling is stayed ONLY as to two aspects: the review of classified documents and the injunction stopping the criminal investigation. So Judge Dearie stays in place for the rest.

But since those were the only parts Trump actually cared about, this is a massive blow to him

I'm not going to go over their recap of the facts & procedural history, but it's worth noting that they specifically said that NARA was acting as it was supposed to in trying to get documents back from Trump

This also seems worth a note; calling out Trump's inconsistent positions

This is also a pretty good signpost for how they reached the ultimate decision

Anyway, on to the actual reasoning.

Always fun to get a preliminary decision that says "your opponent has a substantial likelihood of winning"

And this is as close to a benchslap directed to the trial judge as an appellate court will ever come

That was basically, "look, Aileen, when we said this was indispensable, that meant 'you can't grant it without finding this', not 'eh, do what you want, no biggie'"

Also, "for the sake of completeness" =

So what else did Judge Cannon screw up?

Also, OK, I'm wrong. This, in red? That's a benchslap. "We cannot discern why" is, effectively, "what the fuck were you thinking, trial court? This isn't a close call"

Oh, hell yes

"Declassification? Fuck off"

LOL, no, you can't use "we think the government will leak the documents" as an argument here, especially since that's not an injury to you and you haven't claimed any attorney-client privilege.

This is important. "WTF were you thinking treating Trump differently than any other criminal suspect" is a critical lesson for the court to drive home.

And the red is hugely important: No, this isn't political harassment; there's a good faith basis for potential criminal charges

Last factor ... also doesn't favor Trump.

Cannon got literally *everything but one thing* wrong here, and on that 1 thing - that there was no callous disregard - she got its impact wrong.

Just a terrible, inexplicable ruling by the trial judge

And the sum up on the merits. Back in a bit, childcare

Next, they address whether the government showed irreparable harm: Spoiler

They start with a history lesson on classification. There's absolutely no need to do this beyond making sure the public understands what's at stake here and, again, lining up "Judge Cannon, how could you even think harm was an open question?"

No, you can't separate out "national security review" from "criminal review" and you had an uncontested declaration explaining why that is.

Again, this illustrates how wildly off course Cannon went in accepting Trump's arguments without requiring any evidence from him

"look, just guess at whether the court will agree that you weren't violating the injunction" isn't a viable standard, and particularly where it impacts national security you can't leave that threat hanging out there without harming the public

Again, they're just going out of their way to signal to Cannon that she fucked up in a totally and completely indefensible fashion.

None of this should have remotely required detailed explanation from the 11th Circuit given the existing precedent

BTW, @Catsorange1, remember when you said judges make rulings, not arguments, so the fact that Cannon didn't bother trying to articulate any viable legal reasoning was irrelevant?

That's only true at the SCOTUS level. District judges? They get appealed when they're this wrong.

Anyway, the wrap-up here

OK, does the stay harm Trump?

1) You've got no right to have the docs
2) Please stop trying to make "but I don't want to be indicted" happen. It's not going to happen.
3) You didn't bother submitting any evidence that anything might be privileged.

LOL, no, you won't be harmed by a stay.

Last, does the public interest favor letting the government keep reviewing the classified docs, including for its criminal investigation?

Well, how many times were you dropped on your head as a child that you think that's even up for discussion?

To sum up, there were 2 separate 4-factor tests Cannon had to conduct when faced with the stay request: the 4 Richey factors that determine likelihood of success on the merits, & the 4 factors governing injunctive relief.

She went 1-7, & even the 1 she got right, she got wrong.

So this is, literally, a foregone conclusion. Trump takes the L.

So what does all this mean?

First, Trump is still staring at an indictment. Second, everything that happens in front of Cannon from here on out is irrelevant. The appeal on the rest of the order (which will go forward because this is just a stay pending appeal, so they need to)

almost definitely won't be decided before the government is done with its criminal investigation, and nobody really cares about the special master's review of anything *but* the classified documents.

(Trump will insist on it anyway because he needs some sort of win)

Third, yes, Trump will appeal the stay, probably first en banc and then to SCOTUS. He'll lose twice.

Last - where is the judicial system right now? Yes, it continues to hold, for the most part. But Trumpist judges like Cannon, Ho, & Oldham are still there, and they'll still be hollowing out the system from the inside if not thoroughly outweighed by competent jurists of ALL kinds

Yes, conservative as well as liberal.

Folks, MAGA hacks referred to the 2016 election as a Flight 93 moment - if we don't do it now, the country's lost! It was nonsense.

2024 really is that. The country will not survive another President willing to appoint judges like these

There's only so much weight that the rest of the judiciary can carry; the more partisan hacks get appointed to the bench, the further down the road to completely irreparable harm we travel.

For all of America's flaws, and there are many, we are remarkably lucky to live in a society where the majority of people, conservative and liberal, really do a good faith job of trying to do their duty under the law. We saw that with the 2020 election certifications, and we're

seeing it now. But it's not going to be very hard to push us to a tipping point where that's no longer the case - and that's the express goal of the Josh Hammer wing of the conservative movement.

Don't take this for granted. Please.

One last note -

https://twitter.com/mdj6248/status/1572755026287931393