Thread by @Teri_Kanefield

Trump lost. The 11th circuit granted the DOJ's stay for the 100 documents marked classified. (This is not a good day for Trump)

Here's the decision: politico.com/f/?id=00000183…

Let's read it together 🤓

(If you want to catch up, see this blog post: terikanefield.com/judgecannon/)

1/

The panel emphasizes that this is a narrow decision, but to prevail, the DOJ had to show a likelihood of prevailing on the merits in the full appeal. (screenshot #2)

You can tell a lot by how a court recites the facts. They mention the movers !! (screenshot #1)

2/

Classified documents in a moving van = not good.

So Trump made off with classified documents in a moving an, finally returned 15 boxes in January, the boxes contained classified documents, and he was informed that Biden declined to assert privilege.

3/

Nope. ⤵️

For Judge Cannon, this is like getting a D in law school.

I won't go through all the facts again, but the court notes that after the grand jury subpoena, Trump's lawyer signed an affidavit that a "diligent search was conducted" . . .

4/

https://twitter.com/rob_gordon1/status/1572733034398642178

. . . handed over some documents, and said that was it, all responsive documents had been returned.

Trump made no claims of privilege at the time. He said, "I don't have anything else." Then the search turned up classified documents.

5/

Fun fact: In each of his court filings in this case, Trump refers to himself as "President Trump." The DOJ called him "the Plaintiff."

The court is calling him "the plaintiff." Ouch.

The decision then marches throrugh the procedural history.

6/

The court notes that Trump is not following the normal procedures but he is carving out special procedures. (Basically, Trump said "This isn't a rule 41 return of property motion but I want the special master to return my property.")

This is not a good sign for Trump.

7/

Haven't I been telling you all that Trump generally loses in court, where facts matter?

Here they point out how Cannon did some twists to accommodate Trump (#1)

And that her ruling appointing a special master rests on flimsy grounds . . .

8/

. . . for example, "a special master might be perceived to be more impartial than the Privilege Review Team."

As to privilege, he "might be able to assert" . . .

Flimsy! (Also you can see that the court disagrees.)

9/

Now they're criticizing Cannon's decision not to grant the temporary stay: She appointed the special master because "some" of the seized material may be personal, but never explained how classified documents can be personal.

10/

Trump's lawyers made a convoluted argument that the appellate court didn't have jurisdiction. The court dismissed that in a footnote. (#1)

This is harsh (#2) The court "cannot discern why Plaintiff would have" an interest in docs marked classified.

10/

"We cannot discern" is judicial snark. When you present an argument to the appellate court, everything should be discernable. 😆

Here, they borrowed the DOJ's language. In fact, this is very close to how the DOJ framed its argument. (That's what happens when you win.)

11/

They point out that Trump never claimed any privilege (and supposedly he had done a diligent search through his documents).

The next paragraph I'll share would cause a few sleepless nights for most people in Trump's situation . . .

12/

The court says, basically: Sorry Trump. The threat of future prosecution and the stigma isn't the kind of potential injury that entitles you to special procedures. You're just like every other defendant.

"no doubt the threat of prosecution can weigh heavily..."

13/

The DOJ's reply filed last night made clear that what was happening was that Cannon was supervising a criminal investigation.

Appellate court: "Nope, courts of equity do not ordinarily restrain prosecutions."

Basically they're saying Trump doesn't get special procedures.

14/

Of course, the appellate court then goes on about how it entirely agrees that it is not possible to enjoin a criminal investigation while allowing a national security investigation to continue: fear of overstepping a court order would likely chill the investigation.

15/

The idea of a district court micromanaging a criminal and national security investigation is also a separation of powers issue.

We have some serious clues that the DOJ will win the entire appeal.

So, is ketchup flying in Trump's residence tonight?

16/

Now, let's talk about Trump's next step: SCOTUS.

Remember, this is a temporary stay, not the appeal itself.

Trump would have to ask SCOTUS to stop the criminal investigation, which means stopping a national security investigation . . .

17/

Here's why I don't think it will happen. (1) SCOTUS refused to hear Trump's executive privilege lawsuit when he tried to keep presidential records from Congress, and that had more merit than this one, which isn't saying a lot actually, but this one is laughable.

18/

(2) They refused to hand him the election when he made all of those bogus claims about election fraud.

This isn't an appeal, it's just a temporary stay, so it's a very limited ruling, and the 11th Circuit just eviserated Cannon's arguments.

19/

While he was president, SCOTUS rejected his absolute immunity claims.

Why would they stick their necks out over stolen classified documents?

Everyone needs to absorb this truth: With very rare exceptions, Trump loses in court.

20/

It did break. I had two #10s.

See if this fixes it.

(I can read, think, and type at the same time, but I can't read, think, type and COUNT at the same time.

https://twitter.com/Teri_Kanefield/status/1572739974969315329