There it is. DOJ got both things it asked for at the 11th Circuit (and from a two Trump-judge panel): not needing to turn over the documents with classification markings for the special master’s review and allowing them to use those ~100 documents in the criminal investigation.
The question now is if Trump’s team will try to take that to #SCOTUS, technically, asking the justices to vacate the stay just entered by the 11th Circuit.
The “Factual Background” section is worth a read for how damning it is—even when presented by a three-judge panel that includes Brasher! This is not some miracle of ~objective~ judging from the 11th Circuit so much as it is damning of Cannon’s actions in the case. Three examples:
In the “Discussion” section — the big legal question — that’s where the 11th Circuit really just tosses Cannon’s ruling aside. “But for the sake of completeness” is rough on Cannon. It’s saying, “there are lots of reasons why we would reverse this district court judge.”
And then a clerk — or judge(?) — started letting off some steam. “WE CANNOT DISCERN” … “HAS NOT EVEN ATTEMPTED” … 🥶
Oh yes, they did it: “In any event, at least for these purposes, the declassification argument is a red herring because declassifying an official document would not change its content or render it personal.”
Give this clerk a raise.
“This distinction is untenable,” the 11th Circuit writes about the national security assessment/criminal investigation distinction, echoing what I (and others) wrote (lawdork.com/p/judge-aileen…) after Cannon’s earlier order and the govt argued in pressing for a stay.
The 11th Circuit panel pretty much just says that no one — i.e., Cannon or Trump — has provided anything near the justification necessary to let a special master, let alone Trump’s lawyers, go see the documents with classified markings.
On the “would Trump be injured by the partial stay” factor, DOJ is brief and aggressively to the point — with a numbered list! The 11th Circuit’s answer is, obviously, no.
The final factor in deciding whether to grant the partial stay — the public’s interest — is “self-evident,” the court writes.
That is one crisp, clear ruling. DOJ is on solid ground here.*
And while Trump technically lost the arguments, don’t lose sight of the loss that Aileen Cannon took tonight — esp. coming from a panel made up of two Trump appointees and one Obama appointee.
* = But see: SCOTUS.
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BREAKING: The Supreme Court’s men allow the execution of Alan Miller in Alabama tonight. In a 5-4 vote, the male justices vacate a district court’s injunction that the 11th Circuit had left in place. The district ct said the state couldn’t use lethal injection in the execution.
This is the second 5-4 ruling where Justice Barrett joined the three Democratic justices — Justices Sotomayor, Kagan, and Jackson — on the “four” side. Here was the first —>
John Roberts and Brett Kavanaugh should be embarrassed that they allow this with executions. It is purely b/c they have the power to do it — but it undermines faith in the judiciary when they short-circuit their own lower court judges to help states kill people faster.
Three months ago tonight, I announced that I was going to be starting a newsletter. Just hours shy of the three-month mark from my first subscriber, I passed 3,000 subscribers to @lawdorknews earlier today. lawdork.com
I am so grateful for the response that I’ve received to the return of Law Dork. The subscribers — including those of you who’ve become paid subscribers! — the kind things people have said about the newsletter, and the love & help of my family and friends. THANK YOU ALL SO MUCH!
It’s truly humbling to see this working. I love being able to dive into the stories that I think are important and report on them and write about them in the way that I think is necessary. I know that I’m so privileged to be able to do it, and I’m grateful for it every day.
“[T]he Attorney General has decided to continue to seek the death penalty” in the case of Sayfullo Saipov, the man accused in the October 2017 deadly terror attack along a bike path in Manhattan. The court and Saipov were informed on Friday. lawdork.com/p/the-biden-ad…
During his campaign, however, Biden pledged to “eliminate the death penalty,” holding out that such individuals should instead serve life without the possibility of parole. lawdork.com/p/the-biden-ad…
BREAKING: Judge Aileen Cannon denies DOJ's motion for a partial stay as to documents with classified markings seized in the Mar-a-Lago search, appoints Sr. Judge Raymond Dearie as special master to review all materials seized in investigation of Trump. storage.courtlistener.com/recap/gov.usco…
In the appointment order, Cannon directs Dearie "to conclude his review and classifications by November 30, 2022, subject to modification if necessary as proposed by the Special Master." storage.courtlistener.com/recap/gov.usco…
Cannon's response to the interrelated nature of the national security assessment and criminal investigation is nearly gibberish.
US Attorney Rachael Rollins, announcing today's arrest for a bomb threat against Boston Children's Hospital, which has been the focus of anti-transgender attacks from Libs of Tik Tok and others for more than a month.
JUST IN: According to the FBI affidavit filed in Leavy's case, she "initially denied" — in an interview earlier today — knowing where her phone was and denied "making the threat to BCH on August 30, 2022." She later admitted to making the threat, according to the affidavit.
Yes, per the affidavit, the call was made from a cell phone registered to her name.
BREAKING: #SCOTUS denies a stay to Yeshiva University in its fight over recognizing an LGBTQ club, with the 5-4 majority saying the school should seek relief from NY state courts first. A trial court judge in NY has ordered the school recognize the club.
Chief Justice Roberts and Justice Kavanaugh joined the Democratic appointees in denying the school's request to stay the NY trial court's order. Justices Thomas, Alito, Gorsuch, and Barrett dissent.
The decision lifts the temporary stay issued by Justice Sotomayor last Friday, meaning the school will have to recognize the club under the current state court order. Here was my thread from Friday: