Thread by @lawofruby

I've read DOJ's brief opposing Trump's emergency request for relief so you don't have to. DOJ nicely swats away the legal thrust of Trump's argument -- that the appellate court lacked pendent jurisdiction. 1/

If the ground rules for what can be appealed and when during the life of a case interest you, I highly recommend reading my friend @steve_vladeck's thread from earlier today. This won't be that kind of thread. 2/

@steve_vladeck Rather, what interests me is whether DOJ refuted any of Trump's factual allegations with its own narrative. While it could have addressed Trump's insistence that all of the classified docs were sent to Mar-a-Lago *before* his presidency was over, it didn't. 3/

And the reason, says DOJ without raising that or any other particular "fact" Trump offered, is that it doesn't matter. Even a purportedly declassified document can't be his personal property and can't be the subject of any attorney-client privilege. It's still a "red herring." 4/

That doesn't mean DOJ didn't take some swipes at Trump. Swipe 1: Trump can't claim he's allowed 24/7 access to documents under the PRA because having never returned them to the National Archives, he's basically forfeited the right to invoke the Presidential Records Act. 5/

Swipe 2: Trump insists he's declassified everything in public, but he's "never represented in any of his multiple legal filings in multiple courts that he in fact declassified any documents -- much less supported such a representation with competent evidence." 6/

Swipe 3 (in a footnote!): Trump used to yammer about executive privilege--but not recently. That's probably because it doesn't exist vis a vis other executive branch agencies -- e.g., DOJ -- but even if it did, we've proven an urgent need for the stuff. 7/

And swipe 4? If he wants "emergency" relief, he has to show he's likely to win on the merits and that he's being irreparably harmed. He didn't even try. 8/

So nothing especially new or sexy, but a clear, highly competent brief that feels a little like a veteran kindergarten teacher calmly correcting a naughty kid. FIN