The DOJ's appeal is here: assets.bwbx.io/documents/user…
As we expected, the DOJ asks the appellate court to overturn the entire special master review, including (of course) the injunction that the DOJ stop using and reviewing the documents as the special master conducts its review.
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As we expected, the DOJ asks the appellate court to overturn the entire special master review, including (of course) the injunction that the DOJ stop using and reviewing the documents as the special master conducts its review.
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The three issues⤵️
(I'll skip the statement of facts for now and start with the argument).
The DOJ was already given permission to continue its criminal investigation into the classified docs and to prevent the special master from viewing them as the appeal is pending.
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(I'll skip the statement of facts for now and start with the argument).
The DOJ was already given permission to continue its criminal investigation into the classified docs and to prevent the special master from viewing them as the appeal is pending.
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First, and most importantly, the district court never had jurisdiction over this matter in the first place.
(Jurisdiction means power to make decisions and give orders.)
Cannon assumed what's called "equitable jurisdiction" which is limited to particular circumstances. . .
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(Jurisdiction means power to make decisions and give orders.)
Cannon assumed what's called "equitable jurisdiction" which is limited to particular circumstances. . .
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None of the conditions were present here.
Factors necessary for equitable jurisdiction (#1)
At a minimum, it requires a showing that the government callously disregarded Trump’s constitutional rights.
The district court acknowledged Trump's rights were not disregarded. #2
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Factors necessary for equitable jurisdiction (#1)
At a minimum, it requires a showing that the government callously disregarded Trump’s constitutional rights.
The district court acknowledged Trump's rights were not disregarded. #2
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There you go. End of story. If there is no jurisdiction, the case gets dismissed. The whole thing goes poof.
The DOJ, though, goes on to show that none of the factors were met.
Factor #2: Trump does not need government documents (duh right?) . . .
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The DOJ, though, goes on to show that none of the factors were met.
Factor #2: Trump does not need government documents (duh right?) . . .
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. . . and he didn't explain why he could not wait for the return of other personal property.
In other words, why couldn't Trump follow the same procedures as every other person who has his stuff seized pursuant to a valid search warrant?
No reason.
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In other words, why couldn't Trump follow the same procedures as every other person who has his stuff seized pursuant to a valid search warrant?
No reason.
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"Speculative" is lawyerly snark. It's a super polite way of saying, "Making up shit."
There was nothing Trump said that couldn't be said by anyone whose property was seized as part of a criminal investigation.
In other words: Dear 11th Cir.: Do you want everyone doing this?
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There was nothing Trump said that couldn't be said by anyone whose property was seized as part of a criminal investigation.
In other words: Dear 11th Cir.: Do you want everyone doing this?
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Because if you let Trump do it, everyone can do it. Special masters everywhere!! Overburden the courts!
On the other hand, criminal defense lawyers would love it. It would give them one more thing they can do for their clients who are upset over a search.
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On the other hand, criminal defense lawyers would love it. It would give them one more thing they can do for their clients who are upset over a search.
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This brings us to the last factor: There is no reason Trump can't follow the usual procedures.
Here they explain how the whole Cannon inserting herself actually delayed Trump getting personal stuff back.
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Here they explain how the whole Cannon inserting herself actually delayed Trump getting personal stuff back.
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They address each of Cannon's absurd justifications:
🔹Trump is harmed by the threat of criminal prosecutions (yeah, so is everyone who is the target of a search).
🔹There's a power imbalance. (Welcome to criminal law, which pits an individual against the government). . .
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🔹Trump is harmed by the threat of criminal prosecutions (yeah, so is everyone who is the target of a search).
🔹There's a power imbalance. (Welcome to criminal law, which pits an individual against the government). . .
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The drafters of the Constitution already figured out that in criminal procedures, the government has all the power. That's why citizens have rights (to prevent abuse of power).
Trump (who calls himself President Trump) won't like this one⤵️
"Former elected office." BWHAHAH.
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Trump (who calls himself President Trump) won't like this one⤵️
"Former elected office." BWHAHAH.
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This document is 53 pages. But we're having so much fun so far, you want me to continue, right?
The DOJ does the "even if, then . . . " thing where they argue "even if you find jurisdiction, here are the many other reasons you should overturn the district court's orders."
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The DOJ does the "even if, then . . . " thing where they argue "even if you find jurisdiction, here are the many other reasons you should overturn the district court's orders."
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Next: Even if the 11th circuit finds that jurisdiction was proper, the district court should not have prevented the DOJ from further review and use of the seized records pending claims of executive and attorney-client privilege.
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Executive privilege doesn’t apply because the DOJ is part of the executive branch.
But even if Trump COULD assert executive privilege, it would be overcome by the government’s “demonstrated, specific need” under US. v Nixon.
And other reasons (abridging here)
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But even if Trump COULD assert executive privilege, it would be overcome by the government’s “demonstrated, specific need” under US. v Nixon.
And other reasons (abridging here)
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The DOJ does throw in that the documents marked classified are the very object of the government’s investigation of potential violations of 18 U.S.C. § 793.
The injunction wasn’t necessary to protect claims of attorney-client privilege because a filter team was in place.
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The injunction wasn’t necessary to protect claims of attorney-client privilege because a filter team was in place.
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The DOJ explains why the 11th Circuit has jurisdiction to consider the special master's orders: The 11th circuit has jurisdiction over the injunction, and the special master portion of the order was “inextricably entwined” with the injunction.
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It's clear that the DOJ will win on that one because the 11th Circuit already assumed jurisdiction, but they threw it in because these documents are supposed to be complete.
That's why it's 53 pages.
Overall prediction: Unless something weird happens, Trump Will Lose.
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That's why it's 53 pages.
Overall prediction: Unless something weird happens, Trump Will Lose.
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https://twitter.com/CCanuck50/status/1581046582723551233
That won't delay anything unless SCOTUS takes it, and given how quickly they swatted away his last attempts, the chances are close to zero.
I just saw that Eastman lost his bid to get his phone back from the DOJ . . .
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. . . and earlier today we found out that Trump lost his court fights to keep Marc Short and others from testifying in the investigation into the January 6 attack in both district court and the 11th Circuit.
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https://twitter.com/Teri_Kanefield/status/1580989530714169344
Each of these losses means that the DOJ keeps gathering evidence in its ongoing criminal investigations.
I don't think the goal is merely to delay. It's to help with fundraising, increase his stature as a strongman who can fight, fight, fight, and try to discredit the DOJ.
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I don't think the goal is merely to delay. It's to help with fundraising, increase his stature as a strongman who can fight, fight, fight, and try to discredit the DOJ.
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Before you think Trump is in any way "winning" wait until this plays out. This could be a case in which he could have completely avoided criminal liability a year ago but instead decided to take on the US government.
We still don't know how this will come out.
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We still don't know how this will come out.
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